Fair Work Ombudsman v DTF World Square Pty Ltd - [2023] FCA 201 - FCA 2023 case summary — Zoe

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Fair Work Ombudsman v DTF World Square Pty Ltd

[2023] FCA 201

Federal Court of Australia|2023-03-15|Before: Katzmann J

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Court

Federal Court of Australia

Decision date

2023-03-15

Before

Katzmann J

Source

Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

INTRODUCTION 1 This proceeding concerns numerous alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act) and Fair Work Regulations 2009 (Cth) (Regulations) by two related companies operating restaurants in Sydney and Melbourne which trade under the name "Din Tai Fung" (DTF). The two companies, DTF (World Square) Pty Ltd (DTF (WS)) and Selden Farlane Lachlan Investments Pty Ltd (Selden), are members of the DTF group of companies. A glossary of select terms appears at the end of these reasons. 2 The Fair Work Ombudsman (Ombudsman) alleges that the two companies (the Employers) contravened several provisions of the FW Act. The alleged contraventions arose out of the Employers' practices of paying employees below award rates and of keeping false or misleading records with the apparent object of concealing the underpayments. Some of the alleged contraventions are said to be "serious contraventions" within the meaning of s 557A of the FW Act. 3 The Ombudsman considers that three individuals were involved in many or all of the alleged contraventions and in her original pleading alleged that each had therefore also contravened the FW Act. The Ombudsman was unable to serve the first of these individuals, Dendy Harjanto (the third respondent), and discontinued the proceeding against him. The remaining two, who are the fourth and fifth respondents respectively, are Hannah (aka Vera) Handoko and Sinthiana (aka Sinthia) Parmenas. 4 The case relates to a particular cohort of employees. The employees in question (the Employees) worked at restaurants in Sydney and Melbourne during the period from 6 July 2014 to 30 June 2018 (the contravention period). With one exception, the contraventions are alleged to have taken place in the period 5 November 2017 to 30 June 2018 (the assessed period). The exception relates to one employee, Guoyong (aka Jet) Liu. The contraventions affecting him allegedly occurred during the period 6 July 2014 to 5 May 2018 (the Liu period). 5 The Ombudsman seeks declaratory relief and orders that the Employers pay compensation to the Employees together with interest and superannuation contributions on behalf of them to their nominated superannuation funds. She also seeks orders that the Employers, Ms Handoko, and Ms Parmenas pay pecuniary penalties. 6 This judgment is concerned with the question of liability only. An order was made on 21 September 2021 that the question of liability be determined separately from all other questions arising in the proceeding. 7 On 18 May 2022, after the Ombudsman served her evidence, the time within which the respondents were required to file and serve their evidence had expired, and after hearing dates had been fixed, both DTF (WS) and Selden went into voluntary liquidation. Leave to proceed against them was granted last year: Fair Work Ombudsman v DTF World Square Pty Ltd [2022] FCA 724. The liquidators chose not to defend the proceeding. Consequently, the only active respondents were Ms Handoko and Ms Parmenas. They did not challenge or contest the Ombudsman's case against the Employers. And, although they vigorously resisted the making of adverse findings against them, they elected not to give evidence.

[2]

THE EVIDENCE 8 The Ombudsman read affidavits from eight witnesses, only three of whom were required for cross-examination. 9 Those witnesses who were not required for cross-examination were: (1) Luke Russell Thomas, a Fair Work Inspector, employed as an Assistant Director in the Compliance and Enforcement Group in the Office of the Ombudsman, who supervised the investigation between 15 January 2019 and 4 June 2020; (2) Melvin Paul, a lawyer in the Office of the Ombudsman and a former Fair Work Inspector; (3) Peter Richter, a Taskforce Investigator for the Large Corporates Branch in the Compliance and Enforcement Group of the Office of the Ombudsman and a Fair Work Inspector; (4) Ronnie Wong, an Assistant Team Leader in the Calculations Team in the Ombudsman's Office; and (5) Monica Zhang, a Fair Work Inspector. 10 Mr Thomas deposed to the course of the investigation, including site visits and requests for production of documents. Most of the documentary evidence was exhibited to his first affidavit (Ex LRT-1). Exhibit LRT-1 included documents produced to the Ombudsman by the Department of Home Affairs and by the Employers themselves. Mr Paul deposed to an interview he attended with another Fair Work Inspector (FWI), FWI Colalancia, and Ms Parmenas. Ms Zhang deposed to an interview conducted by two other FWIs and Mr Harjanto on 9 October 2019 at which she was present. Mr Richter deposed to a site visit he undertook at the Head Office of DTF (WS) on 12 December 2017. Mr Wong calculated the amounts of the alleged underpayments. 11 The witnesses who were required for cross-examination were Qiyin Lin, Mr Liu, and Anthony Tandra. 12 Ms Lin and Mr Liu are former employees of DTF (WS). Mr Tandra was employed by DTF (WS) as a payroll officer from 11 July 2016 until about March 2018. His main responsibility was to process the fortnightly payroll for each of the companies in the DTF Group. I gave Mr Tandra a certificate under s 128 of the Evidence Act 1995 (Cth) (Evidence Act), which prevents the evidence the subject of the certificate from being used against him in any proceeding in an Australian court, save for a criminal proceeding related to the giving of false evidence. 13 As the Ombudsman submitted, the cross-examination did not challenge the veracity of their evidence (or, for that matter, its reliability). Indeed, in some respects the cross-examination confirmed and advanced their evidence. 14 Before DTF (WS) and Selden went into liquidation, the parties agreed on some facts and a statement of agreed facts was admitted into evidence. 15 The respondents adduced no evidence. Two affidavits filed by the respondents in May 2022 were not read.

[3]

ABSENT WITNESSES 16 Any respondent is entitled to remain silent. That said, however, in a civil case, the unexplained failure of a party to give evidence or call witnesses may lead to an inference that the missing evidence or absent witness would not have assisted that party's case: Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J); 312 (Menzies J); and 321 (Windeyer J). The Court may take that circumstance into account in deciding whether to accept particular evidence that relates to a matter on which the absent witness could have spoken: JD Heydon, Cross on Evidence (13th ed., LexisNexis, 2021) at [1215]. Moreover, in a civil case evidence the witness might have contradicted can be accepted more readily if the respondent fails to give evidence: Jones v Dunkel at 312 (Menzies J); and 321 (Windeyer J); RPS v The Queen (2000) 199 CLR 620 at [26] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ). And any inference favourable to the other party for which there is a foundation in the evidence can more comfortably be drawn: Jones v Dunkel at 308 (Kitto J); and 312 (Menzies J). It does not matter that the party who could have called the evidence does not bear the burden of proof. As Rich J put it in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49, "when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold". 17 A Jones v Dunkel inference cannot fill gaps in the evidence and cannot convert conjecture or suspicion into inference: Jones v Dunkel at 313 (Menzies J). But, if the inference is drawn, it can "weigh the scales, however slightly, in favour of the opposing party": Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1 at [649] (Giles JA, with whom Mason P and Beazley JA agreed at [1] and [2] respectively). 18 Moreover, as Heydon observed in Cases and Materials on Evidence (Butterworths, 1975) at 62: [A] party's failure to give any satisfactory explanation of a prima facie case against him may suggest that the case is sound, either because silence is assent - an implied admission, or because it shows a consciousness of guilt or liability, or because inferences from the prima facie case, being unchallenged, are thereby strengthened. The presumption is the stronger where the facts are particularly within his knowledge. 19 Here, none of the respondents offered an explanation for their failure to give evidence or call witnesses. The fact that this is a proceeding for a pecuniary penalty is not a satisfactory explanation: Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 (ASIC v Adler) at [504] (Santow J); appeal dismissed in Adler at [664]-[669]. As counsel for Ms Handoko and Ms Parmenas accepted, reliance on the penalty privilege does not prevent the Court from drawing an adverse inference. Only a witness can invoke the privilege against self-incrimination and then only under oath or affirmation: Chong v CC Containers Pty Ltd (2015) 49 VR 402 at [236] (Redlich, Santamaria and Kyrou JJA). 20 Having regard to the positions Ms Handoko and Ms Parmenas held in the companies and the fact that they were parties to the proceeding, the absence of evidence from them is particularly significant. As Street J observed in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582, in a passage cited by Santow J in ASIC v Adler at [448]: The inference which a Court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. Where the absent witness is a party himself then considerable importance may well attach to the inference. Similarly, the inference is significant if the absent witness is, as in the present case, a person who … was personally engaged in the transactions in question and who was in fact present at Court during part of the hearing …

[6]

The Employees 29 The following matters were agreed. 30 DTF (WS) employed the following employees (DTF (WS) Employees) at least for the periods mentioned: Guoyong Liu from 6 July 2014 to 5 May 2018 (the Liu period); Eliyani Eliyani from 17 November 2017 to 2 June 2018; Ery Ery for the assessed period; Kenny Kenny for the assessed period; Qiyin Lin from 5 November 2017 to 2 June 2018; Renpeng Liang for the assessed period; Rong Xue for the assessed period; Santy Kam for the assessed period; Tingli Qiu from 5 November 2017 to 19 May 2018; Wynne Elysia Wijaya for the assessed period; Yovika Tonang Toe for the assessed period; and Zhizi Xu from 5 November 2017 to 30 December 2017. 31 Selden employed the following employees (Selden Employees) for at least the following periods: Henghui Chen from 5 November 2017 to 10 February 2018; Meng Joo Low from 5 November 2017 to 21 December 2017; Nianna Chandra Goi for the assessed period; Tu Dat Huy for the assessed period; and Yinhu Zheng for the assessed period. 32 Each of the Employees was a "national system employee" within the meaning of s 13 of the FW Act. 33 At all material times, Mr Liu, Mr Kenny, Ms Lin and Ms Xue (Full-time Employees) were employed pursuant to written employment contracts with DTF (WS) that included a term that the employee's contracted hours would be based on a weekly cycle of 38 hours. Each of the Full-time Employees was resident in Australia on a visa sponsored by DTF (WS). 34 During the assessed period, Ms Eliyani, Mr Ery, Mr Liang, Ms Kam, Ms Qiu, Ms Wijaya, Ms Toe, Ms Xue and all of the Selden Employees (collectively, the Casual Employees) worked hours which varied each fortnight; did not have reasonably predictable hours of work; worked without a firm advanced commitment by their employer as to their days or hours of work; did not receive any paid annual leave or personal leave; and did not have a written part-time agreement with DTF (WS). The Selden Employees worked at the Emporium Restaurant. 35 The Employers paid the Employees on a fortnightly basis. In certain fortnights during the contravention period, each of the Employers made "adjustments" to the total amount paid to the Employees during that fortnightly pay period. 36 Before 6 May 2018, DTF (WS) paid the wages of the Full-time Employees (with the exception of Mr Liu) each fortnight using a combination of electronic funds transfer (EFT) and cash. DTF (WS) paid Mr Liu's wages each fortnight using a combination of EFT and cash, but on at least one occasion paid him solely by cash, and on other occasions, paid him solely by EFT. After 6 May 2018, DTF (WS) paid the Full-time Employees' wages each fortnight solely by EFT. 37 Before 22 April 2018, the Employers paid the Casual Employees' wages each fortnight by a combination of EFT and cash, solely in cash or solely by EFT. After this time, wages were paid each fortnight solely by EFT. 38 The only Employees who gave evidence were Mr Liu and Ms Lin. I make the following findings based on their unchallenged evidence. 39 Mr Liu was employed by DTF (WS) from about March 2011 to 5 May 2018. When he started, he was a student and worked about two or three days a week as a kitchen hand. He was later promoted to supervisor and became the second-in-charge of the kitchen at the World Square Restaurant. After he completed his studies, DTF (WS) sponsored him for a subclass 457 visa (a temporary work visa for employees of approved employers for up to four years). DTF (WS) arranged for him to receive training from Culinary Solutions Australia and on 10 March 2014 he acquired Certificates III and IV in Asian Cookery. He was given an employment contract dated 13 March 2014 in which his position was described as "cook". His base salary was recorded as $58,240, payable monthly in arrears. His hours of work were said to be "based on a weekly cycle of 38 hours with applicable benefits being calculated on those hours". The contract was signed by Ms Handoko and Mr Liu. 40 That same year, a new DTF restaurant opened at Greenwood Plaza in North Sydney. Mr Liu was appointed head of the back kitchen and was responsible for managing staff there. Later that year (no later than 6 July 2014), he moved to the Chatswood Restaurant where he filled the same role. In that position he supervised kitchen staff, cooked food, prepared rosters and oversaw food preparation to the required standards of the DTF business. He also interviewed and trained new staff. 41 Despite the terms of his contract, Mr Liu was told by both Ms Handoko and Kitty Li (sometimes misspelt as "Lee"), the manager of the Chatswood Restaurant, that as "sponsored staff" he had to work 55 hours a week. Mr Harjanto told him the same thing. Mr Liu was also given to understand that he should not take more than one day off a week. Both Ms Li and Ms Handoko told him he had to work additional hours when he included more than one day off per week in his schedule. This was because, unless he worked six days, he could not meet the 55 hour requirement. 42 Mr Liu found it "hard and tiring" to work the long hours required of him. He said the restaurants in which he worked were very busy and there were often "lots of customers" waiting in line. As he was not meant to have more than one day off a week, he was not able to spend time with his family and young son. He struggled during this time. He found it "really stressful" and felt like he was "selling [himself] for the job". 43 As I mentioned earlier, Mr Liu was paid using a combination of EFT and cash. Each fortnight when he was paid the cash portion of his salary, he signed a form called a Staff Received Payment (SRP) form. Sometimes it was Ms Handoko who handed him the cash in an envelope and had him sign the SRP form. At other times, it was Ms Li or Ms Parmenas. 44 Mr Liu was not paid extra for working overtime, evenings, split shifts, weekends or public holidays. 45 Mr Liu's employment came to an end as a result of an email he sent to Ms Parmenas and Ms Handoko on 1 May 2018, while the Ombudsman's investigation was under way. The same month he made a complaint to the Ombudsman about his working conditions. 46 While the email did not offer an explanation for his departure, in his affidavit Mr Liu indicated that it occurred in the following circumstances. When his four year contract was due to expire, Ms Handoko told him "face to face" that his application for sponsorship (for permanent residency) had been approved but on "one condition", namely, that he "must work for DTF for 10 more years". She went on to say: The salary remains unchanged but not all of the weekly salary is given to you. I want to leave part of it in the company to make sure that you don't quit without PR [permanent residency]. This is Dendy's decision. Other sponsored staff accept this agreement. 47 Shortly after a visit from "Fair Work", staff from the Chatswood Restaurant including Mr Liu attended a video conference with Mr Harjanto. During that meeting Mr Harjanto said words to the following effect: All the leaders: you can't put the timetable on the wall. Only the leader can see the files. They can't be public for all staff so they can't take photos. 48 Around the same time Ms Li directed Mr Liu not to make the schedule (roster) public. She told him that it needs to be kept "somewhere that only we can see it". She continued: When Fair Trading [presumably she meant the Fair Work Ombudsman] come we have to lie to them. The working hours for the student can't be more than 20 hours per week. 49 Ms Lin began working for DTF (WS) in October 2010 as a casual employee while on a student visa. She worked in the kitchen at the World Square Restaurant and occasionally helped out at other "stores". Like Mr Liu, Ms Lin later acquired a subclass 457 visa, sponsored by DTF (WS) who paid for her to participate in a course following which she obtained Certificates III and IV in Asian Cookery from Culinary Solutions Australia. Ms Lin signed an employment contract dated 9 April 2014 and became a Full-time Employee. Her position was described as "cook". Her base salary was recorded as $54,340, payable monthly in arrears. Her hours of work were said to be "based on a weekly cycle of 38 hours with applicable benefits being calculated on those hours". The contract was signed by Ms Handoko and Ms Lin. According to a letter sent by Ms Handoko to the "457 visa section" of the Department of Immigration and Border Protection on 16 May 2014, Ms Lin would be required to work side by side with the other cook at the World Square Restaurant. 50 From about the middle of 2014 Ms Lin occupied the position of Front Kitchen Leader at DTF's Greenwood restaurant in North Sydney. She was responsible for managing the quality of the food at the restaurant. She supervised and directed more junior staff, prepared food, and arranged rosters for other restaurants. During the assessed period, Ms Lin was working as the Front Kitchen Leader at the Emporium Restaurant in Melbourne. In that role she cooked food and supervised and directed kitchen staff. 51 Ms Lin was paid a salary, part of which was paid into her bank account (by EFT) and the balance was paid in cash, usually every second Friday. Ms Xue (known as Rita) was a "store manager" at the Emporium Restaurant when Ms Lin worked there and she paid her the cash component of her salary. 52 Although her contract recorded that she would be working 38 hours per week, at around the time she was sponsored for the visa she was told by Doddy Doddy (Ms Parmenas's predecessor as HR manager) that she needed to work 55 hours a week. In around February 2018, after the investigation by the Ombudsman had commenced and the first site visit had taken place, the hours Ms Lin was required to work changed to 50. She normally worked weekends and public holidays. Her evidence as to the requirement to work first a 55 hour week and later a 50 hour week is corroborated by WhatsApp message exchanges involving Mr Doddy (until around 20 May 2016) and Mr Tandra exhibited to her affidavit on 30 November 2015, 24 January 2018, and 21 February 2018. Ms Lin deposed that the same number was used by DTF's payroll and HR staff. 53 At times Ms Lin worked in excess of 55 hours a week but was not paid for the excess hours. Nor was she given time off in lieu.

[8]

THE PAYROLL SYSTEM 55 Mr Tandra gave evidence, among other things, about the payroll system and the record-keeping practices of the DTF Group, including the roles played by Ms Handoko and Ms Parmenas. The resolution of a number of issues in the case largely turns on Mr Tandra's evidence. The evidence itself was uncontroversial. The only controversy concerned a finding the Ombudsman asked the Court to make, based in part on that evidence. 56 Mr Tandra struck me as an honest witness. No suggestion to the contrary was put to him in cross-examination or advanced on behalf of the active respondents in submissions. There is no reason why I should not accept his evidence and I do. I make the following findings based on that evidence. 57 Ms Parmenas was Mr Tandra's immediate supervisor. When he started work for DTF (WS) Mr Tandra received (verbal) instructions from Ms Parmenas about how to operate DTF's payroll system and the process he was to follow in administering the payroll. In cross-examination, Mr Tandra said that he took over the payroll job from Ms Parmenas. Mr Tandra sat next to Ms Parmenas in the open plan office and they often spoke to each other during the working day. On more than one occasion, Ms Parmenas assisted Mr Tandra with his payroll duties by entering data into the system herself. Although Ms Handoko was her immediate supervisor, Ms Parmenas also reported directly to Mr Harjanto. 58 The payroll process included making records regarding the hours worked by, and amounts paid to, employees. 59 The records included both accurate and inaccurate records. 60 At the beginning and end of each working day and at the beginning and end of each break from work, the employees were required to scan their fingerprints into fingerprint scanning machines (fingerprint scanners) at the restaurants in which they worked. Provided the employees remembered to scan in and out at the right time, the machine would record the times their shifts and breaks started and finished.

[14]

Pay slips 68 The above errors were replicated in the pay slips as they contained the information that Mr Tandra, and at times Ms Parmenas, had entered into the ADP or MYOB software. The ADP pay slips were posted to the DTF Head Office by ADP for distribution to employees. The MYOB pay slips were generated electronically and were either sent to employees by email or accessed by the employees logging onto MYOB themselves. 69 Mr Tandra's evidence about the false information in the pay slips was corroborated by Mr Liu and Ms Lin. 70 Mr Liu deposed that the hours on the pay slips did not match the hours he actually worked and the payments they recorded did not correspond to the payments he received. He pointed, by way of example, to a pay slip he received for the period 25 February to 10 March 2018 (Ex GL-1 p 54), which recorded that: he was paid a normal hourly rate of $29.96 although he was not paid by the hour but was paid a flat salary that did not change according to the hours he worked; he worked 76 hours that fortnight when his SRP form for the same period (Ex GL-1 p 56) shows that he worked 92.89 hours; and he received take home pay of $1,815 which corresponds to the amount in the EFT column of the SRP form but ignores the amounts he was paid in cash, which are recorded in the "Balance+Tips" columns of the SRP form. 71 This is the pay slip: 72 In contrast, this is the SRP form for the same period: 73 Mr Liu explained that "TWH" refers to total working hours, "EFT" to the amount transferred to his bank by electronic funds transfer, and the "Balance" to the remaining part of his salary that he would be paid separately in cash. "Balance+Tips" was the total amount of cash that he received during the pay period. He said it was "the standard practice" that the "Balance+Tips" were paid in cash. 74 Mr Liu deposed that with rare exceptions, throughout the time he worked at DTF the SRP forms appeared to accurately reflect the hours he worked and the amounts he was paid. He said that sometimes staff for whom he was responsible complained that some of their hours had not been recorded in their SRP forms. In those cases, Mr Liu would check the schedules and, if he agreed, he or the staff member would send a message to Ms Parmenas or Ms Li to have the form corrected. He added that no-one ever suggested that too many hours had been recorded on a SRP form in relation to any employee. 75 Ms Lin also deposed that the information in the pay slips was not correct in that they did not record the hours she actually worked and the amounts recorded were different from the amounts she received. She offered as an example a pay slip bearing her name for the period 19 November to 2 December 2017 (Ex QYL-1 p 129), which recorded that: her normal hourly rate was $27.63 when she was not paid per hour but a flat salary that did not change according to the hours she worked; she worked 76 hours that fortnight when her SRP form for the same period (Ex QYL-1 p 114) shows that she worked 88.81 hours; and she received take home pay of $1,700 which corresponds to the amount in the EFT column of the SRP form but ignores the amounts she was paid in cash, which are recorded in the "Balance+Tips" columns of the SRP form. 76 This is the pay slip: 77 In contrast, this is what the SRP form showed for the same period:

[16]

Payments to employees 80 Throughout the time Mr Tandra worked for DTF, the business paid its employees' wages using a combination of EFT and cash. 81 Once the payroll records had been created, unless Ms Parmenas told him otherwise, Mr Tandra would process the employees' EFT payments for the EFT amounts in the SRP forms. 82 The employees received the rest of their wages in cash. The process, as described by Mr Tandra, was as follows. Each fortnight, Mr Tandra took enough cash to pay the employees from the Head Office to each of the Sydney stores. He carried it with him in a backpack. He visited seven stores in a day, travelling around Sydney from store to store by train. The amount varied each fortnight from about $160,000 to $200,000. The cash was divided into bundles, with one bundle for each store. Mr Tandra would hand over the amount of cash owing to the employees of that store to each store manager for distribution. On occasions, he and Ms Parmenas would share the burden, dividing the cash and restaurants between them. In a telephone interview with FWI Colalancia on 10 July 2019, attended by FWI Paul and an Indonesian interpreter, Ms Parmenas reported that until August 2018 she processed the cash payments by taking the cash to the stores for the store managers to distribute. She said that Frendy Frendy, the accountant for the DTF Group, would give her the cash and she would put it into envelopes and drop them off at the stores. 83 Mr Tandra deposed that DTF would also make pay as you go (PAYG) withholding payments on behalf of the employees. 84 Mr Tandra testified that Mr Frendy would liaise with someone in the Emporium Restaurant in Melbourne to distribute the cash portion of the salaries to employees there. 85 Cross-examination was brief. At no point was it put to Mr Tandra that any aspect of his evidence was false. Mr Tandra confirmed that employees were being paid the wrong amounts and that he knew that the records he was generating were incorrect. He said that the system was in place when he started with DTF.

[18]

THE BURDEN AND STANDARD OF PROOF 89 Before going any further, I should say something about the burden and standard of proof. 90 Ms Handoko and Ms Parmenas submitted that "it is clearly a matter for the [Ombudsman] to persuade the Court as to each of the contraventions having regard to the level of proof or confidence required in Briginshaw v Briginshaw [(1938) 60 CLR 336] and s 140(2) of the Evidence Act 1995". They argued that "findings as to a contravention of the [FW Act] are not findings lightly to be made", citing Australian Building and Construction Commissioner v Hall [2017] FCA 274; 269 IR 1 at [20] per Flick J. So much may be accepted. 91 With one qualification, the burden of proof rests with the Ombudsman. The qualification relates to the contraventions alleged to have taken place on and from 15 September 2017 when s 557C of the FW Act commenced. Section 557C shifts the burden of proof to the employer in a proceeding relating to a contravention by an employer of certain civil remedy provisions of the Act in circumstances in which, relevantly, the employer was required to make and keep records or to give a pay slip and, absent a reasonable excuse, the employer failed to comply with the requirement. The provision reflects a legislative policy that an employer should not be able to take advantage of its failure to make or keep certain records to defeat a claim that it has underpaid its employees, see for example: Gallagher v AAG Labour Services Pty Ltd [2020] FCA 1753 at [18] (Jackson J). 92 Section 557C relevantly provides as follows: Presumption where records not provided (1) If: (a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and (b) the employer was required: (i) by subsection 535(1) or (2) to make and keep a record; or (ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or (iii) by subsection 536(1) or (2) to give a pay slip; in relation to the matter; and (c) the employer failed to comply with the requirement; the employer has the burden of disproving the allegation. (2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b). (3) The civil remedy provisions are the following: (a) subsection 44(1) (which deals with contraventions of the National Employment Standards); (b) section 45 (which deals with contraventions of modern awards); … (j) any other civil remedy provisions prescribed by the regulations. 93 As Colvin J explained in Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; 290 IR 331 at [14], it is the legal, not merely the evidential, burden of proof which shifts to the employer: Section 557C provides for more than an evidentiary burden on the defaulting employer when it comes to an absence of records. It is not a mere reversal of the evidentiary onus. Further, it is not a provision, for example, that operates to deem a matter to be proved in the absence of evidence to the contrary. In such cases, an issue may arise as to whether the obligation is to adduce some evidence which raises a genuine issue as to whether the matter occurred or whether the burden of disproving the matter falls on the party who disputes the matter. Rather, s 557C states expressly that the defaulting employer bears the burden of disproving the allegation. It is a provision concerned with the overall burden of proof. 94 Thus, as his Honour went on to say at [16], if the evidence adduced by the employer is insufficient to disprove the allegation on the balance of probabilities, then the effect of s 557C is that the claim must be upheld. 95 A contravention of a civil remedy provision is not an offence: FW Act, s 549. A court is required to apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention: FW Act, s 551. The standard of proof in a civil matter is proof on the balance of probabilities. The strength of the evidence necessary to discharge the burden may vary according to what is sought to be proved: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 (Mason CJ, Brennan, Deane and Gaudron JJ). Thus, in deciding whether that standard has been met, s 140 of the Evidence Act requires a court to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding; and the gravity of the matters alleged. Section 140 is, in effect, an enactment of some of the principles explained by Dixon J in Briginshaw at 361-2: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 96 In Neat Holdings at 171 the plurality observed that authoritative statements have often been made to the effect that clear, cogent or strict proof is required where so serious a matter as fraud is to be found. Referring to Briginshaw at 362, their Honours emphasised that such statements are not to be understood as directed to the standard of proof. Rather, they are to be understood as a reflection of "a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct" and a judicial approach that a court should not lightly find a party to civil litigation guilty of such conduct.

[20]

Is the conduct and state of mind of each of Mr Harjanto, Ms Handoko, Ms Parmenas, Mr Tandra and any other payroll officers attributable to DTF (WS) and Selden? 98 The answer to this question is yes. That is the effect of s 793 of the FW Act, which, at all material times relevantly provided as follows: Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. … (5) In this section, employee has its ordinary meaning. 99 Thus, the liability of a body corporate depends on the conduct in which its officers, employees or agents engaged (provided it is within the scope of their actual or apparent authority) and their conduct is taken for the purposes of the FW Act to have been engaged in also by the body corporate. Further, if it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a particular officer, employee or agent had that state of mind. In other words, s 793 operates so that the conduct and state of mind of an officer, employee or agent of a body corporate are attributed to the body corporate for the contravention concerned. See Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365 at [45]-[46] (Reeves and O'Callaghan JJ). 100 Having regard to the work they performed, Ms Handoko and Ms Parmenas were either employees or agents of DTF (WS) and agents of Selden, Mr Tandra was an employee of DTF (WS) and an agent of Selden, and any other payroll officers were at least agents of DTF (WS) and Selden.

[22]

Did the Employees fall within the pleaded classifications in the Restaurant Award? 101 In their defences the respondents denied that the Employees performed work at the three restaurants and that they performed the roles and duties pleaded by the Ombudsman. In the statement of agreed facts the respondents admitted that the Employees were employed by the relevant employer during the alleged periods and that the Employers employed the Employees to perform work at their restaurants. But they denied that the Employees performed work at the particular restaurants and in the roles and duties pleaded. 102 The nature of the work they are alleged to have performed was described in a table in Annexure A to the FASOC. I have broken up the table to separate the Employees of the two companies and elevated Mr Liu to the first row of the DTF (WS) table: Table A: DTF (WS) Employees Employee Restaurant Role and duties Qualifications Award classification Guoyong Liu World Square Cook Certificate III and Certificate IV in Asian Cookery from Culinary Solutions Australia dated 10 March 2014 B.3.8 Cook grade 5 (tradesperson) Chatswood Head of the kitchen at the Chatswood Restaurant. Responsible for supervising kitchen staff, cooking hot food (such as noodles, wok based dishes and soups) and overseeing the preparation of dishes to the DTF Group's required standards and specifications. Eliyani Eliyani World Square Front of House Staff N/A B.2.2: Food and beverage attendant grade 2 Taking customers' orders, serving food and beverages, preparing itemised cheques and accepting payments. Sometimes performing additional duties such as escorting customers to tables, serving customers seated at counters and setting up and cleaning tables. (Wait Staff Duties) Ery Ery World Square Cook N/A B.3.4: Cook grade 1 Cooking hot food such as noodles, wok based dishes and soups. Preparing all of the ingredients for these dishes to the DTF Group's required standards and specifications. Managing incoming orders and effectively prioritising all of his tasks (Cook Duties). Kenny Kenny Emporium Restaurant Manager Diploma of Leadership and Management from International Institute of Leadership and Management dated 12 October 2015 B.2.5 Food and beverage supervisor - Level 5 Coordinating daily restaurant operations, including food delivery and service, maximizing customer satisfaction and responding efficiently and accurately to customer complaints. (Restaurant Manager Duties) Qiyin Lin Emporium Cook Certificate III and Certificate IV in Asian Cookery from Culinary Solutions Australia dated 10 March 2014 B.3.7 Cook grade 4 (tradesperson) Supervising and directing kitchen staff preparing food. Checking the food produced to ensure it meets the DTF Group's required standards. Renpeng Liang World Square Front of House Staff N/A B.2.2: Food and beverage attendant grade 2 Wait Staff Duties Rong Xue Emporium Restaurant Manager Diploma of Management from iBN College dated 16 September 2012 B.2.5: Food and beverage supervisor -Level 5 Restaurant Manager Duties Advanced Diploma of Management from iBN College dated 17 March 2013 Certificate IV in Accounting from Australian Ideal College dated 27 October 2014 Diploma of Accounting from Australian Ideal College dated 15 December 2014 Santy Kam World Square Dumpling Maker Leader N/A B.3.4 Cook grade 1 Supervising and directing staff who are preparing dumplings. Checking each of the dumplings staff produce to ensure they meet the DTF Group's required standards. Tingli Qiu World Square Front of House Staff N/A B.2.2: Food and beverage attendant grade 2 Wait Staff Duties Wynne Elysia Wijaya World Square Front of House Staff N/A B.2.2: Food and beverage attendant grade 2 Wait Staff Duties Yovika Tonang Toe World Square Dishwasher N/A B.3.1 Kitchen attendant grade 1 Assisting in dishwashing area and ensuring that all of the utensils and plates are washed and clean. Zhizi Xu World Square Front of House Staff N/A B.2.2: Food and beverage attendant grade 2 Wait Staff Duties

[25]

Did the Employers calculate the amounts payable to the Employees, and pay the Employees, on the basis pleaded at FASOC [16]-[19]? 104 In [16] of the FASOC the Ombudsman pleaded that DTF (WS) calculated the amounts payable to the Casual Employees on the basis of particular hourly rates (WS Payroll Hourly Rates) and the Full-time Employees on the basis of particular salaries (Payroll Salaries) and Selden did so on the basis of particular hourly rates (Selden Payroll Hourly Rates). In [17] the Ombudsman pleaded that the Employers withheld PAYG withholding amounts in certain fortnightly periods, which are listed in Annexure E to the FASOC. In [18] the Ombudsman pleaded that in certain fortnights during the contravention periods, set out in Annexures F and G, each of the Employers paid the Casual Employees for a different number of hours from those they in fact worked, made adjustments to the total amounts paid to the Employees during that fortnightly pay period, and paid the Casual Employees amounts in addition to the WS Payroll Hourly Rates and Selden Hourly Rates (collectively, the Payroll Hourly Rates). The actual amounts paid to the Employees were set out in [19]. 105 The Payroll Hourly Rates and Payroll Salaries are contained in the Payroll Tables in Ex LRT-1, which were amongst the documents produced to the Ombudsman in response to the notices to produce. The rates contained in those documents are reproduced in the tables appearing at FASOC [16]. No objections were pressed with respect to this evidence and FWI Thomas was not cross-examined. 106 The evidence as to the PAYG withholding amounts pleaded at FASOC [17] is found in the pay slips, payroll reports, ADP payroll journals and MYOB pay run summaries for the Employees and, in Mr Liu and Ms Lin's case, also in the PAYG payment summaries. 107 In any event, no objections were taken to the affidavit of Mr Wong in which he calculated the underpayments based on this evidence or to the methodology he employed and he was not cross-examined. 108 Since the evidence of FWI Thomas and Mr Wong was not challenged and was ultimately admitted without objection and there is no evidence to the contrary, there is no good reason why I should not accept it and I do.

[26]

Do the fingerprint timesheets accurately record the matters they purport to record? 109 There is a wealth of evidence to show that the Employees recorded their hours of work by the use of fingerprint scanning machines. Not only did Mr Tandra, Mr Liu and Ms Lin give evidence to this effect but other employees reported the same thing to Fair Work inspectors at site visits. On 12 December 2017, for example, Hui Wei, who was in charge of purchasing for the DTF business at that time, told FWI Richter on a visit to the DTF Head Office that actual hours worked were recorded by employees "clock[ing] in and out with a thumbprint". Several other employees told him the same thing. FWI Richter took a photograph of a fingerprint scanner and photographs were also taken of fingerprint scanners at the Emporium Restaurant and the World Square Restaurant the same day. FWI Hunter's notes of her interview with Ms Parmenas confirm that actual hours worked were recorded by "fingerprint[ing] all staff". 110 All respondents disputed the accuracy of the fingerprint timesheets. Ms Handoko and Ms Parmenas submitted that the fact that Mr Tandra transferred, and from time to time amended, the data produced by the fingerprint scanners meant that the fingerprint timesheets were not primary records of the hours worked by the Employees and the Court cannot have the requisite level of confidence in their accuracy. I reject that submission. The fact that Mr Tandra amended the data produced by the fingerprint scanners after checking with the restaurant managers does not mean that they were not primary records of the hours employees worked nor does it affect the reliability of the information contained in the fingerprint timesheets. The "Din Tai Fung Australia Rules", exhibited to Mr Liu's affidavit, required employees who forgot "to do the fingerprint" in accordance with the protocols, to report their omissions to their "department leaders" so that the information could be recorded. In the absence of any challenge to Mr Tandra's evidence and any evidence to the contrary, the fingerprint timesheets are the best evidence of the matters they purport to record and the Court is entitled to give weight to them. The fact that Mr Tandra went to the trouble to check the accuracy of the data makes the information in the fingerprint timesheets more, not less, reliable.

[27]

The legislative requirements 111 Section 535 of the FW Act provides that: Employer obligations in relation to employee records (1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees. Note This subsection is a civil remedy provision (see Part 4-1). (2) The records must: (a) if a form is prescribed by the regulations - be in that form; and (b) include any information prescribed by the regulations. Note This subsection is a civil remedy provision (see Part 4-1). (3) The regulations may provide for the inspection of those records. Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C. (4) An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading. Note: This subsection is a civil remedy provision (see Part 4-1). (5) Subsection (4) does not apply if the record is not false or misleading in a material particular. 112 Subsections (4) and (5) and the note to subs (3) were inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) (Protecting Vulnerable Workers Amendment Act) and commenced on 15 September 2017. 113 Regulation 3.44(1), which was repealed with effect from 21 December 2017, provided: An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not false or misleading to the employer's knowledge. Note: Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions. 114 For the purposes of s 535(1), reg 3.31(1) provides that an employee record must be legible, in the English language, and in a form that is readily accessible to an inspector. 115 Regulation 3.33 provides: Records - pay (1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the rate of remuneration paid to the employee; and (b) the gross and net amounts paid to the employee; and (c) any deductions made from the gross amount paid to the employee. (2) If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee. (3) If the employee is entitled to be paid: (a) an incentive-based payment; or (b) a bonus; or (c) a loading; or (d) a penalty rate; or (e) another monetary allowance or separately identifiable entitlement; the record must set out details of the payment, bonus, loading, rate, allowance or entitlement. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions. 116 Regulation 3.34 provides: Records - overtime For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies: (a) the number of overtime hours worked by the employee during each day; or (b) when the employee started and ceased working overtime hours. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions. 117 Section 536 deals specifically with pay slips. It relevantly provides: Employer obligations in relation to pay slips (1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Note 1 This subsection is a civil remedy provision (see Part 4-1). … (2) The pay slip must: (a) if a form is prescribed by the regulations - be in that form; and (b) include any information prescribed by the regulations. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C. (3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading. Note: This subsection is a civil remedy provision (see Part 4-1) (4) Subsection (3) does not apply if the pay slip is not false or misleading in a material particular. 118 Regulations 3.45 and 3.46 prescribe the form and content of the pay slips. 119 Regulation 3.45 provides that for s 536(2)(b), a pay slip must be in electronic form or hard copy. 120 Regulation 3.46 stipulates: Pay slips - content (1) For paragraph 536(2)(b) of the Act, a pay slip must specify: (a) the employer's name; and (b) the employee's name; and (c) the period to which the pay slip relates; and (d) the date on which the payment to which the pay slip relates was made; and (e) the gross amount of the payment; and (f) the net amount of the payment; and (g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and (h) on and after 1 January 2010 - the Australian Business Number (if any) of the employer. (2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid. (3) If the employee is paid at an hourly rate of pay, the pay slip must also include: (a) the rate of pay for the employee's ordinary hours (however described); and (b) the number of hours in that period for which the employee was employed at that rate; and (c) the amount of the payment made at that rate. (4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates. (5) If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include: (a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or (b) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.

[32]

The Ombudsman's allegations 125 For the reasons set out above, the Ombudsman claims that the pay slips, ADP records and MYOB records (the inaccurate records) were false or misleading in material particulars (FASOC [54]). 126 The Ombudsman alleged that the inaccurate records were created at the DTF Head Office and, where they relate to the same fortnightly pay period, were created by the same employees of the DTF group and in accordance with procedures approved, in part at least, by Ms Handoko, Ms Parmenas, Mr Tandra and/or other payroll officers. For the period from February 2015 to 30 June 2018, she alleges that the records were created by Mr Tandra and/or other payroll officers, under the supervision of Ms Parmenas. The Ombudsman alleges that the records made and kept in relation to Mr Liu and the DTF (WS) Employees were made and kept by DTF (WS) or an agent on its behalf and the records made and kept in relation to the Selden Employees were made and kept by Selden or by an agent on that company's behalf. 127 The Ombudsman claimed that at all material times Mr Harjanto, Ms Handoko, Ms Parmenas, Mr Tandra and/or the payroll officers knew that these records were false or misleading and therefore so did DTF (WS) and Selden. 128 Consequently, she pleaded (at FASOC [57]-[59]) that: (1) DTF (WS) contravened s 535(4) and reg 3.44(1) of the FW Act by knowingly making and keeping false or misleading records of: (a) the rate of remuneration paid to the DTF (WS) Employees; (b) the gross and net amounts paid to the DTF (WS) Employees; (c) the hours worked by the Casual DTF (WS) employees; and (d) the loadings and penalty rates paid to the Casual DTF (WS) employees. (2) Selden contravened s 535(4) of the Act by knowingly making and keeping false or misleading records for the Selden Employees of: (e) the rate of remuneration paid to the Selden Employees; (f) the gross and net amounts paid to the Selden Employees; (g) the hours worked by the Selden Employees; and (h) the loadings and penalty rates paid to the Selden Employees.

[33]

Consideration 129 I am satisfied that each of these allegations has been proved. The Employees were not paid the rates of remuneration, the gross and net amounts or the loadings and penalty rates recorded in the inaccurate records. Mr Tandra's evidence in this respect was clear, unequivocal, unchallenged and undisputed. Mr Liu and Ms Lin confirmed critical aspects of it and their evidence was not disputed either. Further, it was an agreed fact that the SRP forms are accurate records. It necessarily follows that, to the extent that the information they contain differs from the information in the inaccurate records, these records are false and misleading. They represent that the Employees were paid amounts that they were not paid. 130 I also take into account the fact that Ms Parmenas and Ms Handoko and, for that matter, Mr Harjanto would have been in a position to contradict Mr Tandra's account if it were false. 131 I find that the false and misleading records were created by Mr Tandra, an employee of DTF (WS) and an agent of Selden, on their behalf, within the scope of his actual authority and on instructions from his supervisor, Ms Parmenas. Mr Tandra knew they were false or misleading because he knew they were created using incorrect rates and incorrect working hours. By reason of s 793 of the FW Act, Mr Tandra's conduct is also taken to have been engaged in by DTF (WS) and Selden and, in effect, his knowledge is attributed to them. It follows that DTF (WS) and Selden each knew that these documents were false and misleading. Since the false and misleading records continued to be produced after Mr Tandra left the employ of DTF, it is to be inferred that whoever took over his responsibilities maintained these practices. 132 Mr Tandra did not devise these practices. He followed Ms Parmenas's instructions. When he started work for DTF Ms Parmenas instructed him on how to operate the payroll system and the process he was to follow in administering the payroll, which included the making of the false and misleading records. For the first month, she asked him to observe the process. From time to time, she helped him with the payroll. She told FWI Hunter that she was the person who created the employee records and that she processed the wages for the employees when Mr Tandra was away. 133 Having regard to s 793, the conduct and knowledge of Ms Parmenas is also attributed to the Employers. 134 For these reasons, I find that DTF (WS) and Selden each contravened s 535(4) and reg 3.44(1) as alleged.

[34]

Contraventions of s 535(1) of the FW Act 135 The second part of the Ombudsman's claim with respect to record keeping is that the Employers failed to make and keep certain records in contravention of s 535(1) of the FW Act. 136 First, the Ombudsman alleged that at all material times before 22 April 2018 in respect of the Casual Employees and 6 May 2018 in respect of the Full-time Employees, during each fortnightly pay period in which each of the Employers paid an Employee by EFT and cash and remitted a PAYG amount on behalf of the Employee (identified in Annexure J to the FASOC), each of the Employers: (a) failed to make and keep a record of the actual rates of remuneration paid to the employees, contrary to reg 3.33(1)(a), and (b) the actual gross amount paid to them, contrary to reg 3.33(1)(b). 137 This allegation is made out. As the Ombudsman submitted, the records produced by the Employers do not include records of the actual rates of remuneration paid to the Employees as required by reg 3.33(1)(a) or the actual gross amounts paid to them as required by reg 3.33(1)(b) on each occasion in the relevant periods in which the Employees were paid by EFT and cash. The SRP forms only recorded the net amounts. The fingerprint timesheets, of course, only recorded the hours worked. While the Employers did make and keep records which purported to record the rates of remuneration and the gross and net amounts paid to the Employees, those records were false in that they purported to record that information but the information they recorded did not correspond to the rates or amounts actually paid. 138 Second, the Ombudsman alleged that, during the periods indicated below, DTF (WS) failed to keep a record of the net amounts paid to the following DTF (WS) employees: (a) Ms Eliyani, from 3 December 2017 to 24 February 2018 (for which period no SRP forms or fingerprint timesheets were produced); (b) Mr Ery, from 11 February to 24 February 2018 (for which period no SRP forms or fingerprint timesheets were produced); (c) Mr Liu, from 30 July to 12 August 2017 and from 22 October to 2 December 2017 (for which periods no SRP forms, fingerprint timesheets or payroll tables were produced). 139 Third, the Ombudsman alleged that Selden failed to keep a record of the net amounts paid to Mr Dat Huy from 3 to 16 June 2018 (for which period Selden failed to produce SRP forms or fingerprint timesheets). 140 These allegations are also made out. Annexure I to the FASOC records, in tabular form, the pay slips, SRP forms, ADP and MYOB e-timesheets, payroll tables, ADP payroll journals, fingerprint timesheets, MYOB pay run summaries and Westpac EFT receipts produced by the Employers and/or Safford, indicating which were or were not produced for each fortnight. It was an agreed fact that the records were produced in those fortnights in which a cross appears in the table in Annexure I. In each of the periods listed above in relation to Ms Eliyani, Mr Ery and Mr Liu no cross appears, indicating that no records were produced in any of those periods. In an in-person interview with FWI Hunter at the DTF Head Office on 17 December 2021, Ms Parmenas was asked whether she had received records relating to cash payments made to employees that were signed by the employees who received the payments. Ms Parmenas replied that she had, "but not for several months", and when FWI Hunter asked to see the records Ms Parmenas told her she had thrown them out. 141 As the Ombudsman further alleged, during the periods indicated below, the Employers failed to keep a record of the number of overtime hours worked each day by the Employees listed below and when they started and ceased working overtime hours: (a) Ms Eliyani, from 14 January to 2 June 2018 (for which period no fingerprint timesheets were produced); (b) Mr Ery, from 11 to 24 February 2018 (for which period no fingerprint timesheets were produced); (c) Mr Liu, from 30 July to 12 August 2017 and 6 November to 2 December 2017 (for which period no fingerprint timesheets were produced); (d) Ms Qiu, from 8 to 21 April 2018 (for which period no fingerprint timesheets were produced); (e) Ms Wijaya, from 8 to 21 April 2018 (for which period no fingerprint timesheets were produced). 142 The Ombudsman alleged that from 3 to 16 June 2018 Selden failed to keep a record of the number of overtime hours worked each day by Mr Dat Huy and when he started and ceased working overtime hours (for which period no fingerprint timesheets were produced). 143 The fingerprint timesheets were the only records produced by the Employers that purported to specify the actual hours worked by the Employees. It will be recalled that reg 3.34 required that an employer keep a record of the number of overtime hours worked by an employee during each day or when the employee started and ceased working overtime hours. It follows that, in the absence any record of the hours of work for the periods in question, this allegation must be upheld. It is arguable that no records within the meaning of reg 3.34 were produced to the Ombudsman because the fingerprint timesheets only recorded the times the Employees started and finished their shifts and breaks. They did not record "overtime hours worked". But the Ombudsman made no such allegation. Accordingly I make no finding in that regard.

[36]

Contraventions of s 536(3) of the FW Act 148 The Ombudsman alleged (in FASOC [73]-[74]) that: (1) during some or all of the fortnightly periods from 5 November 2017 to 5 May 2018, DTF (WS) contravened s 536(3) by giving each of the Full-time Employees pay slips it knew were false or misleading; (2) during some or all of the fortnightly pay periods from 5 November 2017 to 24 March 2018 (after which hourly rates of pay and hours worked were not specified), DTF (WS) contravened s 536(3) by giving each of the Casual DTF (WS) Employees, except for Ms Eliyani, pay slips it knew were false or misleading; and (3) during some or all of the fortnightly pay periods from 5 November 2017 to 24 March 2018, Selden contravened s 536(3) by giving each of the Selden Employees, except for Mr Low, pay slips it knew were false or misleading. 149 Annexure I to the FASOC lists the relevant fortnightly pay periods. The factual bases for the allegations are pleaded at FASOC [38]-[39], [54]-[54A], [55A], [73]-[74] and described above at [101]-[103]. As I mentioned earlier, Annexure I sets out the records the Employers produced to the Ombudsman and identifies pay periods for which no records were produced. It follows that these particular allegations apply to all the fortnightly periods from 5 November 2017 in respect of which pay slips were produced. 150 I am satisfied that these allegations were proved. For the reasons given above, the pay slips in the periods mentioned above falsely recorded: (a) the gross and net amounts paid to the relevant Employees; (b) the total hours the Full-time Employees worked; (c) that the Full-time Employees were paid an hourly rate rather than a flat fortnightly amount; (d) the Casual Employees worked fewer hours than they in fact worked and that (e) the Casual Employees were paid penalty rates for Saturdays, Sundays and public holidays worked. 151 For the reasons given at [98]-[100] and [129]-[134] above, I am satisfied that the respondents knew that the pay slips were false and misleading.

[48]

Consideration 170 As I indicated above, it is common ground that the Restaurant Award applied to the Employers with respect to the employment of the Employees. The parties also agreed on the minimum rates of pay that the Employees were entitled to receive for ordinary hours of weekday work (minimum rates of pay) subject to their appropriate classification under the Restaurant Award (about which there was no agreement); the 25% loading to which Casual Employees were entitled (casual loading); the applicable rates of pay for ordinary hours worked on a Saturday (Saturday rates), Sunday (Sunday rates) and public holidays (public holiday rates); the penalties payable for weekday work between 10 pm and midnight (evening penalties); the various overtime rates for weekday and weekend work (overtime rates); and the allowances payable where the Full-time Employees were required to work split shifts (split shift allowances). The agreed figures are contained at [43]-[53] of the statement of agreed facts. 171 The hours worked by, and amounts paid to, the Employees as alleged by the Ombudsman are derived from the Employers' own records, including from the SRP forms which the respondents agreed are accurate in this respect. 172 The Ombudsman submitted that, save in relation to Mr Liu's employment before the commencement of s 557C, the effect of the reverse onus means that she has established her case. Her argument was as follows. The Employers were required by s 535(1) to make and keep records of payments made to the Employees, by virtue of their obligations to keep employee records of the rates of remuneration and gross and net payments. Each of the Employers was also required by s 536(2) to give pay slips to the Employees in relation to the matter of payments. Accordingly subs (b) was satisfied. For these reasons, the Ombudsman contended that after 15 September 2017 the burden rested with the Employers to disprove her allegations as to the payments made to the Employees and the amounts they were entitled to receive. She claimed that this included matters going to the Employees' classifications under the Restaurant Award and their roles, duties and hours worked, being matters relating to the question of whether or not they were underpaid in contravention of the Restaurant Award. 173 I am not persuaded that the reverse onus applies with respect to the award classifications of any of the Employees. My attention was not drawn to any section of the FW Act or Regulations requiring an employer to make or keep a record of the appropriate award classification for an employee. I do not doubt, however, that the reverse onus applies to the allegations about the payments made to those Employees and the amounts they should have received. 174 Put simply, Mr Wong calculated the amounts the Employees should have been paid, based on the classifications under which the Ombudsman alleges they should have been paid, and after subtracting the amounts they were paid from these amounts, the amounts of the underpayments. In the absence of any challenge to Mr Wong's evidence, the effect of the reverse onus is that, if the Ombudsman's classifications are right, then the Employees were underpaid the various amounts she alleged. 175 In their closing submissions, Ms Handoko and Ms Parmenas admitted that the Ombudsman's classifications were correct except with respect to the following employees: Mr Liang; Ms Qiu, Ms Wijaya; Ms Xu; Ms Goi; and Mr Zheng. In the "Restaurant Award classification" column of Annexure A to the FASOC, the Ombudsman alleged that the classifications of each of these Employees under the Restaurant Award was "B.2.2: Food and beverage attendant grade 2". Ms Handoko and Ms Parmenas contended that their classifications were: "B.2.1: Food and beverage attendant grade 1". Yet, as the Ombudsman pointed out in her reply submissions, it was not open to them to contend for an alternative classification. That is because, in their defences, Ms Handoko and Ms Parmenas admitted that each of the Employees fell within the Restaurant Award classifications set out in the "Restaurant Award classification" column of Annexure A to the FASOC. During the course of their closing argument, Ms Handoko and Ms Parmenas applied for leave to withdraw these admissions. In supplementary written submissions, however, the application was withdrawn. 176 Having regard to the positions they occupied at all relevant times, and the absence of any evidence to suggest that they no longer hold those positions, the admissions should be taken to be admissions of DTF (WS) and Selden too: Evidence Act, s 87. But out of an overabundance of caution, I have considered whether the Ombudsman's allegations are correct in any event. For the reasons that follow I am satisfied that they are.

[49]

Mr Liu 177 The evidence establishes beyond doubt that at all relevant times Mr Liu's classification under the Restaurant Award was, as the Ombudsman alleged, "B.3.8 Cook grade 5 (tradesperson)". That is so for the following reasons. 178 The classification "B.3.8 Cook grade 5 (tradesperson)" is defined in Sch B to the Restaurant Award to mean: a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following: (a) general and specialised duties including supervision or training of other kitchen staff; (b) ordering and stock control; and (c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment. 179 A "chef de partie" is a "chef in charge of a particular area of production in a restaurant; a station chef or line cook": Oxford English Dictionary (OED) Online, Oxford University Press, June 2022, accessed 26 July 2022. The Macquarie Dictionary (7th ed, Macquarie Dictionary Publishers, 2017) defined "chef de partie" as "a chef in a large kitchen who is responsible for a particular area of production, as roasts, grills, vegetables, sauces, etc.; station chef". As the Ombudsman submitted, since Mr Liu was the head of the back kitchen, he was "in charge of a particular area of production in a restaurant" and so was either a chef de partie or the equivalent thereof who, on his unchallenged evidence, performed general and specialised duties including supervision of other kitchen staff. 180 "Appropriate level of training" is defined in cl 3.1 of the Restaurant Award in the following way: appropriate level of training means that an employee: (a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package; (b) has been assessed by a qualified skills assessor to have skills at least equivalent to those attained in an appropriate training course; and/or (c) at 31 December 2009 (except for a Food and beverage attendant grade 2 as defined in Schedule B-Classification Structure and Definitions) has been doing the work of a particular classification for a period of at least three months, (however, to avoid doubt, the minimum classification rate for an employee who has completed AQF Certificate III or higher qualifications relevant to the classification in which they are employed is Level 4 in clause 20.1. For Food and beverage attendants grade 2, classification at grade 3 is subject to the employee having completed AQF Certificate II qualifications relevant to the grade 3 classification)[.] Level 4 in cl 20.1 includes, relevantly a "Cook grade 3 (tradesperson)". "Cook grade 5 (tradesperson)" is classified as level 6, which is the highest level. 181 At all relevant times Mr Liu held Certificates III and IV in Asian Cookery. Those certificates carry the Australian Qualifications Framework (AQF) logo and state that the qualifications are "recognised within the Australian Qualifications Framework". The AQF is the national policy for regulated qualifications in Australian education and training administered by the Commonwealth Department of Education, Skills and Employment. 182 On 26 March 2014 Ms Handoko wrote to the "457 visa section" of the Department of Immigration and Border Protection reporting that, since March 2011, Mr Liu had been working at the World Square Restaurant as a cook. She also advised that he possessed "skills and knowledge in Taiwanese's cuisine, dumpling in particular", had received three years "on the job training", and was able to work without supervision. Sometime in 2014, Mr Liu was appointed head of the back kitchen in the North Sydney Restaurant and later that year to the same position in the Chatswood Restaurant. The SRP forms produced to the Ombudsman in response to one or more of the notices to produce refer to Mr Liu as belonging to the "management" "department" of the Chatswood Restaurant as early as 6 July 2014 and continuously thereafter until the pay period 19 June to 2 July 2016 when the "department" appears as "back kitchen". In the pay period 25 September to 8 October 2016, the "department" reverts to "management" and thereafter the SRP forms variously refer to the "department" to which Mr Liu belongs either as "back kitchen" or "management". 183 On the face of things, by March 2014 Mr Liu had completed AQF Certificate III and higher, which means that at all material times his minimum classification was "B.3.6 Cook grade 3 (tradesperson)". That classification is defined in Sch B to the Restaurant Award to mean "a commi [sic] chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties". A "commis chef" is defined in the OED online as "a junior chef" and in the Macquarie Dictionary as "a chef working under the supervision of a chef de partie, especially one who is gaining experience in every aspect of the process". "B.3.7 Cook grade 4 (tradesperson)" is defined in Sch B as "a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees". 184 Having regard to his position throughout the relevant period as the head of the back kitchen in the North Sydney and Chatswood restaurants, Mr Liu's duties and responsibilities more closely correspond to the classification "B.3.8 Cook grade 5 (tradesperson)" than either "B.3.6 Cook grade 3 (tradesperson)" or "B.3.7 Cook grade 4 (tradesperson)". He should have been paid accordingly.

[50]

The other Employees 185 As I indicated earlier, I am not persuaded that the reverse onus applies to the question of the award classifications of these Employees as the Ombudsman submitted. For the following reasons, however, I am satisfied that the Ombudsman's contentions are correct. 186 In an email sent on 9 May 2019 to Graham Jolly of NRG Legal, the then lawyers for the respondents, FWI Colalancia complained about non-compliance with the notices to produce. Amongst other things, FWI Colalancia asked Mr Jolly to confirm the job title for each Employee and provide a summary of their duties. NRG Legal responded on 15 May 2019. Among other documents, they forwarded an Excel spreadsheet which provided job titles and summarised the Employees' duties (15 May 2019 spreadsheet). 187 In the 15 May 2019 spreadsheet Mr Ery's job title was given as "cook" and his duties were described as: Cook all of the hot food such as noodle, wok and soup. Prepare all of the ingredients and aware for how the Din Tai Fung's standardizations applies. Manage the orders come and go and can make priority for all of their job description and tasks. 188 The Ombudsman classified him as "B.3.4: Cook grade 1", which is the lowest level of cook in the Restaurant Award and means "an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering". All higher levels require trade qualifications or "the appropriate level of training". The evidence does not suggest that Mr Ery had such qualifications or had undergone "the appropriate level of training". In these circumstances, the Ombudsman's classification is appropriate. 189 The job title allocated to Ms Kam in the same Excel spreadsheet was "dumpling maker leader". Her duties were described as: Watch and control how the staffs work and check their job. The leader should check of the product quality as well and if there's any problem. 190 The Ombudsman classified her as a "B.3.4: Cook grade 1". In the absence of any evidence that she had a trade qualification or "the appropriate level of training", that is the appropriate classification. 191 While the duties performed by Ms Lin were described in the identical way, I do not accept that to be an appropriate description of her duties. Rather, I accept her sworn evidence which was to the effect, as the Ombudsman summarised it, that she supervised and directed kitchen staff in preparing food and checking that the food produced met the DTF Group's required standards. Since she held Certificates III and IV in Asian Cookery at all relevant times, she was correctly classified by the Ombudsman as "B.3.7 Cook grade 4 (tradesperson)". 192 Each of Ms Eliyani, Mr Liang, Ms Qiu, Ms Wijaya, Ms Xu, Ms Goi, and Mr Zheng was a member of the Front of House Staff according to the 15 May spreadsheet and/or an Excel spreadsheet emailed to FWI Colalancia by NRG Legal on 24 May 2019 (24 May 2019 spreadsheet). Their duties were described as: Take customer's orders, serve food and beverages, prepare itemized checks, and sometimes accept payments. Waiters and waitresses may perform additional duties, which may include escorting guests to tables, serving customers seated at counters, setting up and cleaning tables. Must be professional, polite, and reliable. Must be able to learn and describe food proficiently. 193 The Ombudsman classified these seven employees by reference to this description of their duties as "B.2.2 Food and beverage attendant grade 2". I find that to be the classification that most closely corresponds to the description. 194 A "B.2.2 Food and beverage attendant grade 2"is defined in the Restaurant Award as: an employee who has not achieved the appropriate level of training and who is engaged in any of the following: (a) supplying, dispensing or mixing of liquor; (b) assisting in the cellar; (c) undertaking general waiting duties of both food and/or beverage including cleaning of tables; (d) receipt of monies; (e) attending a snack bar; (f) delivery duties; (g) taking reservations, greeting and seating guests. (Emphasis added.) 195 There is no evidence that any of the seven employees had "the appropriate level of training" within the meaning of cl 3 of the Restaurant Award. 196 As the Ombudsman submitted, cl B.2.1(b) of the Restaurant Award makes it clear that Food and Beverage Attendant grade 1 employees do not provide "service to customers". Such an employee is defined as one engaged in any of the following duties: "picking up glasses; general assistance to food and beverage attendants of a higher grade not including service to customers; removing food plates; setting and/or wiping down tables; cleaning and tidying of associated areas; and receipt of monies" (emphasis added). 197 The job title given to Mr Dat Huy in the 24 May 2019 spreadsheet was also "Front House Staff" and his duties were described in the same way as Ms Eliyani and the others. In contrast to them, however, there was evidence that he had "the appropriate level of training". In a "personal data" form he completed on 21 May 2016, Mr Dat Huy stated that he held an Advanced Diploma of Hospitality issued by the William Angliss Institute. An Advanced Diploma is equivalent to AQF level 6: https://www.teqsa.gov.au/how-we-regulate/acts-and-standards/australian-qualifications-framework, accessed on 8 March 2023. In these circumstances, as the definition of "appropriate level of training" in cl 3.1 of the Restaurant Award makes clear, the minimum classification in which Mr Dat Huy was employed was Level 4 in cl 20.1. For a food and beverage attendant that means that he was properly classified, as the Ombudsman submitted, as "B.2.4 Food and beverage attendant grade 4 (tradesperson)". 198 Mr Chen was given the job title "cook" in the 24 May 2019 spreadsheet and his duties were described as follows: Cook all of the hot food such as noodle, wok and soup. Prepare all of the ingredients and aware for how the Din Tai Fung's standardizations applies. Manage the orders come and go and can make priority for all of their job description and tasks. 199 His "personal data" form, completed on 22 June 2016 discloses that he held a Commercial Cookery Certificate IV. In these circumstances, the Ombudsman was right to classify him as "B.3.6 Cook grade 3 (tradesperson)". 200 Mr Low appears in the 24 May 2019 spreadsheet as a "dumpling maker" and his duties are described as "making dough, filling and wrapping dumplings, and also doing the steaming, and the deep fried food". In the absence of any evidence to suggest he had trade qualifications or "the appropriate level of training", I accept the Ombudsman's contention that his classification according to the Restaurant Award was "B.3.4 Cook grade 1". 201 The job titles given to both Ms Xue and Mr Kenny in the respondents' Excel spreadsheets is "Restaurant Manager" and their duties are summarised as: Coordinating daily restaurant operations, delivering food and service, maximizing customer satisfaction, responding efficiently and accurately to customer complaints 202 Ms Xue first worked as a waitress from 6 September 2009 until 10 October 2011. She was then promoted, first to "Front of House Supervisor" and on 2 April 2014 to "Assistant Restaurant Manager". Her "main responsibility", according to Ms Handoko in a letter she wrote to the Department of Immigration and Border Protection on 7 March 2014, was "managing day today of the operation or our restaurant". Amongst other qualifications, Ms Xue holds a Diploma of Management dated 3 October 2012 and an Advanced Diploma in Management dated 20 March 2013 both from International Business Network College (iBN), being qualifications recognised within the AQF. 203 It appears that Ms Xue was a "Restaurant Manager" throughout the assessed period. She was first offered a contract of at least four years in the position of Restaurant Manager in February 2015. 204 DTF (WS) employed Mr Kenny from November 2014. According to his resume, Mr Kenny's duties involved "ensur[ing] the daily restaurant operation runs up to company standard, and help[ing] to manage the quality of the food based on the company's standardization". In a letter to the Department of Immigration and Border Protection dated 17 June 2016, Ms Parmenas confirmed that he had been employed by DTF since November 2014, had been working as a "Restaurant Supervisor", "plays a major role in supervising the daily operation of the restaurant", and had been promoted to Restaurant Manager. A detailed description of his duties and responsibilities as restaurant manager appears in Ex LRT-1 at p 849. His resume discloses that in February 2014 he obtained a Diploma of Leadership and Management from the Sydney International Business Network. On 12 October 2015, the International Institute of Leadership and Management issued him with a certificate indicating that he fulfilled the requirements for BSB51915 Diploma of Leadership and Management, a qualification recognised within the AQF. 205 For these reasons the Ombudsman was correct to identify the classification of Ms Xue and Mr Kenny under the Restaurant Award as "B.2.5 Food and beverage supervisor - Level 5", which is defined in Sch B as: an employee who has the appropriate level of training including a supervisory course and who has the responsibility for supervision, training and co-ordination of food and beverage staff, or stock control for a bar or series of bars. 206 The job title given to Ms Toe in the Excel spreadsheets NRG Legal sent to FWI Colalancia was "dishwasher". Her duties were summarised as "help in [dishwashing] area. Ensure all the utensil and plate was washed clean". The Ombudsman classified her as "B.3.1 Kitchen attendant grade 1". In view of the description in the spreadsheets, the classification is appropriate. "Kitchen attendant" is an apt description of the nature of her work. B.3.1 is the lowest classification for a kitchen attendant. The next level (B.3.2) requires an "appropriate level of training". I was not taken to any evidence that Ms Toe had any training. Moreover, it includes other duties not apparently performed by Ms Toe.

[53]

The legislative requirements 208 Section 44(1) of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. One of those provisions is the provision for maximum weekly hours, contained in s 62 of the Act. 209 Section 62 is in the following terms: Maximum weekly hours Maximum weekly hours of work (1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable: (a) for a full-time employee - 38 hours; or (b) for an employee who is not a full-time employee - the lesser of: (i) 38 hours; and (ii) the employee's ordinary hours of work in a week. Employee may refuse to work unreasonable additional hours (2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable. Determining whether additional hours are reasonable (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee's role, and the employee's level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; (j) any other relevant matter. Authorised leave or absence treated as hours worked (4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised: (a) by the employee's employer; or (b) by or under a term or condition of the employee's employment; or (c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law. 210 Clause 31.1 of the Restaurant Award states that the hours of work of a full-time employee are an average of 38 hours per week over a period of no more than four weeks. Clause 31.2 stipulates that the arrangement of ordinary hours must meet certain conditions. One of those conditions, contained in para (e), is that "an employee must be given a minimum of eight full days off per four week period".

[55]

Consideration 213 Mr Liu gave unchallenged evidence that he was required by Ms Li, Ms Handoko and Mr Harjanto to work a minimum of 55 hours a week. He said that he was told that this was because he was a full-time "sponsored employee". He also deposed that Ms Li, Ms Handoko and Ms Parmenas told him that, if he did not "match" his hours, they would deduct the hours not worked from his annual leave. His evidence was supported by Ms Lin, who deposed that she was told by Mr Doddy, the HR "person" at DTF in 2014, that once she acquired her 457 visa she had to work 55 hours a week. While none of the other Employees gave evidence, documents exhibited to Mr Thomas's first affidavit show that Mr Kenny and Ms Xue were also 457 visa holders. It appears that Ms Kam was on a student visa. 214 As the Ombudsman submitted, the fingerprint timesheets for these Employees show that on average each of them worked more than 100 hours per fortnight during the relevant periods. More relevantly, they show that they worked more than 38 hours a week, often substantially more. Close examination of the records reveals that during the assessed period Ms Xue worked in excess of 38 hours in 17 out of 18 weeks, the exception being the week commencing 18 March 2018, and Mr Kenny and Ms Kam worked in excess of 38 hours a week every single week. In Ms Kam's case, the records show that in 12 of the 24 weeks she worked during the assessed period she worked in excess of 70 hours a week. They also disclose that, for 93% of the nearly four years of the Liu period (199 weeks and 6 days to be precise), Mr Liu worked in excess of 38 hours a week. 215 While DTF (WS) disputed the accuracy of the fingerprint timesheets, the total working hours per fortnight recorded in those timesheets are replicated in the SRP forms, which were admittedly accurate. Further, the evidence upon which the Ombudsman relied, and which she cited in her opening submissions, was not contradicted. 216 It follows that all four employees were either required or requested to work in excess of 38 hours a week during the relevant periods. In the cases of Mr Liu and Ms Lin, the evidence is unequivocal that this was a requirement, rather than a request. In the absence of evidence from Ms Handoko or Ms Parmenas to suggest that their treatment was exceptional, I infer that the same requirement was imposed on Mr Kenny and Ms Xue. 217 As I observed in Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (FWO v FTM) at [474], the effect of s 62(1) is that requiring or requesting a full-time employee to work in excess of 38 hours a week is prima facie unreasonable. The burden then shifts to the employer to prove that the excess hours were reasonable: Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 (Walsh JA). What is "reasonable" is necessarily assessed on a case-by case basis, by reference to the employee's circumstances and the employer's business in accordance with the terms of s 62(3): see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [173] (Logan, Bromberg and Katzmann JJ). 218 In the absence of any evidence from DTF (WS) to indicate that the additional hours were reasonable, the Ombudsman's claim must succeed. 219 In any event, I find that it is unreasonable to require or request employees to work in excess of 38 hours a week without, at least, paying them for overtime worked and at the penalty rates required by the Restaurant Award and without adhering to the award requirement for minimum time off in a four week period. Mr Liu also gave evidence that working the long hours was tiring. As I said in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512; 314 IR 441 at [230], it is a fact of life that fatigue can affect alertness and concentration and common knowledge that it can increase the risk of accidents and contribute to a variety of diseases. There is no evidence that the excess hours worked by these four employees reflected the usual patterns of work in the restaurant industry. Nor is there evidence that the nature of their responsibilities required them to work the excess hours. In Mr Liu's case, there is some evidence to suggest that his personal circumstances alone indicate that it was unreasonable to require or request him to work in excess of 38 hours per week, particularly without giving him the minimum eight days off each month, and over a period of nearly four years.

[57]

The legislative provisions 221 Along with s 557C, the Protecting Vulnerable Workers Amendment Act inserted new sections 557A and 557B into the FW Act. 222 Section 557A relevantly provides as follows: Serious contravention of civil remedy provisions (1) A contravention of a civil remedy provision by a person is a serious contravention if: (a) the person knowingly contravened the provision; and (b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons. Note For the liability of bodies corporate for serious contraventions, see section 557B. Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work. A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions. Systematic pattern of conduct (2) In determining whether the person's conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to: (a) the number of contraventions (the relevant contraventions) of this Act committed by the person; and (b) the period over which the relevant contraventions occurred; and (c) the number of other persons affected by the relevant contraventions; and (ca) the person's response, or failure to respond, to any complaints made about the relevant contraventions; and (d) except if the provision contravened is section 535 - whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and (e) except if the provision contravened is section 536 - whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions. (3) Subsection (2) does not limit the matters that a court may have regard to. (4) Subsection 557(1) does not apply for the purposes of determining whether the person's conduct was part of a systematic pattern of conduct. (5) Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions. … 223 The Explanatory Memorandum (EM) on the Bill which introduced the new provisions stated at [23]-[24]: New subsection 557A(2) provides examples of the kinds of matters a court may have regard to in determining whether a person's conduct constituting the contravention of the provisions was part of a systematic pattern. The reference to a 'systematic pattern of conduct' is to a recurring pattern of methodical conduct or a series of coordinated acts over time. It does not encompass ad hoc or inadvertent conduct. A contravention is more likely to be considered part of a systematic pattern of conduct if: • there are concurrent contraventions of the Fair Work Act occurring at the same time (e.g. breaches of multiple award terms and record-keeping failures); • the contraventions have occurred over a prolonged period of time (e.g. over multiple pay periods) or after complaints were first raised; • multiple employees are affected (e.g. all or most employees doing the same kind of work at the workplace, or a group of vulnerable employees at the workplace); and • accurate employee records have not been kept, and pay slips have not been issued, making alleged underpayments difficult to establish. 224 The EM explained that these factors are only intended to be indicative and a serious contravention may still be established in the absence of one or more of them. 225 Section 557B provides: Liability of bodies corporate for serious contravention (1) For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention. (2) This section does not limit section 793.

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Consideration 227 Two questions arise: first, did the Employers authorise the relevant contraventions in any or all of these respects and second, were these breaches part of a systematic pattern of conduct relating to one or more Employees. 228 The answer to both questions is yes. 229 First, Mr Tandra deposed that, between July and September 2017, before the assessed period began, he had a discussion with Ms Handoko and Ms Parmenas in which he told them that he considered that DTF and Selden were covered by the Restaurant Award. His evidence, which was not challenged, was as follows. 230 After receiving notification of an increase to the minimum wage effective 1 July 2017, Mr Tandra raised the matter with Ms Handoko and Ms Parmenas and queried whether there should be a salary review. Although he could not recall their response, he did recall asking them how the business determined how much staff should be paid once they finish training and that Ms Handoko suggested looking at the Hospitality Award "because we are covered under that award". That suggestion prompted Mr Tandra to look up the Hospitality Award on the internet and saw that it appeared to apply mainly to places like hotels or "places with gambling" and not to businesses that only ran restaurants. He then looked up the Restaurant Award. Later that day he spoke again to Ms Handoko and Ms Parmenas. He told them "it seems that we are under the Restaurant Award because we match the description under that award". He did not remember if either of them answered. Subsequently, in mid to late 2017, some changes were made to the pay rates in the payroll system so that the pay rates included in the pay slips matched those under the Restaurant Award. 231 I infer from this evidence that, before the commencement of the assessed period, each of Mr Tandra, Ms Handoko and Ms Parmenas knew that the Restaurant Award applied and that employees should be paid in accordance with the Award. 232 Second, Ms Handoko and Ms Parmenas knew from their attendance at staff meetings and from their review of staff rosters that the restaurants were open on weekends and public holidays and that employees, including the Employees, worked on weekends and public holidays. 233 Third, Mr Tandra knew the precise amounts paid to the relevant Employees and he admitted to knowing that employees were paid the wrong amounts. More particularly, he deposed that: Full-time employees often worked on weekends but were just paid their usual salary for this and were not paid penalty rates. Casual employees were also not paid penalty rates when they worked during the evening or on weekends or public holidays. None of the employees were paid higher rates when they worked overtime. 234 While Mr Tandra gave no direct evidence about the failure to pay casual loadings, he did give evidence that the Employees were paid the hourly rates of pay set out in the Master Payroll and those rates did not include casual loadings. 235 As Ms Parmenas showed Mr Tandra how to do his job, supervised his work and undertook that work herself when he was away, she must have known the rates paid to the employees and the process by which the rates were calculated. Mr Tandra deposed that Ms Parmenas informed him when he started at DTF that Payroll System Hours for the Full-time Employees were 76 hours per fortnight regardless of the number of hours they actually worked. He also gave evidence that she assisted him with his payroll duties to ensure that deadlines were met. 236 As Ms Parmenas reported to Ms Handoko, it is highly likely (certainly more likely than not) that she was also aware of the payroll practices. 237 These inferences are compelling when Ms Parmenas and Ms Handoko could have given evidence about the extent of their knowledge but elected not to. 238 Mr Tandra's evidence establishes that Ms Handoko and Ms Parmenas had access to the Master Payroll which recorded the hourly rates and flat salaries used by the two Employers to calculate the amounts payable to the Casual and Full-time Employees respectively. Ms Parmenas was also provided with the fortnightly payroll reports Mr Tandra prepared, which included the SRP forms that recorded the amounts actually received by the Employees. In cross-examination, he testified that on at least a few occasions he saw Ms Parmenas give Ms Handoko these fortnightly payroll reports. 239 The evidence also indicates that Ms Handoko was personally involved in the payroll process. A document produced to the Ombudsman by the DTF companies, entitled "PAYROLL PROCESS" at Ex LRT-1 p 2294 (CB3049) records that the "TWH [total working hours] of each store" are to be gathered and sent to "Vera" (Ms Handoko) and each store manager, and that "raw summaries" are to be provided to "Vera to check". 240 Finally, the evidence indicates that nothing happened in the DTF business without Mr Harjanto's imprimatur. Mr Tandra stated that Mr Harjanto had the final say on salary and pay increases and that Ms Parmenas had to get approval from him "for things like payroll". 241 Mr Harjanto admitted to FWI Hunter and FWI Mastwyk when interviewed on 9 October 2018 that penalty rates, allowances and annual leave loadings were not paid to some employees. He also indicated that he was aware DTF was issuing misleading pay slips showing only a portion of the hours worked or part of the wages paid. When FWI Hunter put the proposition to him, he suggested that the business was doing this to protect employees who would otherwise be in breach of their visa conditions, saying: I believe that we have a lot of people who want to work a lot of hours to make money, but for visa reasons they can't, student visas who are only allowed to work for 20 hours per week. We hire people to train and retain them, to make them happy. So we don't want to lose them. Sometimes we are held for ransom … 242 Mr Harjanto also admitted that staff received cash in addition to the salary recorded on their pay slips. 243 I find that it is more likely than not that Mr Harjanto was aware of the way in which the payroll was administered and that he knew of the record contraventions and the relevant award contraventions affecting the Casual Employees. 244 In any event, the knowledge of any of Mr Tandra, Ms Parmenas, Ms Handoko or Mr Harjanto is sufficient to establish the knowledge of the two Employers under s 793 of the FW Act. The evidence concerning their knowledge demonstrates that DTF (WS) and Selden expressly, tacitly or impliedly authorised all the contraventions. 245 Finally, the contraventions were part of a systematic pattern of conduct. As the Ombudsman submitted, considered as a whole the conduct satisfies the description used in the EM of a "recurring pattern of methodical conduct or a series of coordinated acts over time". 246 The contravening conduct was not isolated, ad hoc or inadvertent. Numerous concurrent contraventions were committed by both Employers, in Mr Liu's case over a period of nearly four years and in the case of the other Employees over eight months and multiple pay periods. At least 17 employees were affected. All of these Employees are fairly characterised as vulnerable. They were migrant workers, a number of whom were on temporary visas. Furthermore, the Employers failed to make or keep accurate records and pay slips in accordance with ss 535(4), 535(1) and 536(2) and (3) of the FW Act. While this last factor cannot be taken into account in determining whether the conduct constituting the contraventions of ss 535 or 536 was part of a systematic pattern of conduct, it is relevant to the question of whether the contraventions of s 45 are serious contraventions within the meaning of s 557A.

[62]

The relevant principles 250 The words "aiding" and "abetting" are synonyms: Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) (2005) 53 ACSR 305; NSWSC 267 at [115]. They both mean helping, assisting or encouraging: Australian Securities and Investments Commission v Somerville (2009) 77 NSWLR 110 at [41]. A person "procures" a contravention if the person causes the contravention to be committed, persuades the principal to commit the contravention or brings about its commission: Western Australia v Burke (No 3) [2010] WASC 110 at [19]; Truong v R (2004) 223 CLR 122 at [30]; Somerville at [41]. 251 For para (a) to apply, an alleged accessory must have intentionally aided, abetted, counselled or procured the principal contravener and, in order to form the necessary intent, that person must have knowledge of the essential matters which make up the contravention: Yorke v Lucas (1985) 158 CLR 661 at 667-668 (Mason ACJ, Wilson, Deane and Dawson JJ). Yorke v Lucas was concerned with the operation of s 75B of the Trade Practices Act 1974 (Cth) which was in substantially identical terms to s 550(2) of the FW Act. 252 Similarly, in order to be knowingly concerned in, or a party to, a contravention within the meaning of para (c), a person must know the essential elements of the contravention: Yorke v Lucas at 667, 670 (Mason ACJ, Wilson, Deane and Dawson JJ). 253 Actual knowledge is required: Giorgianni v The Queen (1985) 156 CLR 473 at 505 (Wilson, Deane and Dawson JJ), followed in Yorke v Lucas. It is not enough that the person ought to have known. Knowledge may not be imputed or presumed: Giorgianni at 483 (Gibbs CJ), 505 (Wilson, Deane and Dawson JJ). Still, proof of actual knowledge may be established by either direct or circumstantial evidence. See, for example, Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [231] (White J). Where the alleged accessory is wilfully blind, that is to say, has deliberately shut their eyes to what was going on or deliberately abstained from inquiring, a court may infer actual knowledge: Giorgianni at 488 (Gibbs CJ), 507-8 (Wilson, Deane and Dawson JJ). But nothing short of knowledge will suffice. In South Jin at [232] White J said: The conclusion that a person has actual knowledge of the elements of a contravention by reason of that person's knowledge of suspicious circumstances coupled with a deliberate failure to make enquiries which may have confirmed those suspicions requires consideration of the person's knowledge of the matters giving rise to the suspicion, the circumstances in which the person did not make the obvious enquiry and the person's reasons, to the extent that they are known, for not having made the enquiry. It is not every deliberate failure to make enquiry which will support the inference of actual knowledge. 254 In neither case, however, is it necessary that the person knows that the essential matters or elements constitute a contravention. Put another way, it is unnecessary that the person appreciates that the conduct in question is unlawful: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] (White J); Gore v Australian Securities and Investments Commission (2017) 249 FCR 167 at [15], [38] (Dowsett and Gleeson JJ); at [165] (Rares J). As Dowsett and Gleeson JJ observed in Gore at [15] and [38]: [I]t is settled that in general, it is not necessary to prove knowledge of the law, or knowledge that a particular fact situation attracts legal consequences. That proposition applies to the proof of both principal and accessorial liability … [N]either Giorgianni nor Yorke v Lucas required that it be proven that an alleged accessory knew of the relevant legal provisions which rendered the principal contravener's conduct unlawful. Those decisions establish only that it must be proven that the alleged accessory knew the relevant factual matters leading to illegality … To require more would be inconsistent with the long-established proposition that ignorance of the law is no defence. 255 Further, in EZY Accounting at [34] the Full Court endorsed my observation in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; 152 ALD 209 at [957] that, where an alleged accessory is aware of a system producing certain outcomes which constitute contraventions, the person need not know the details of each of those outcomes in order to have the requisite knowledge. See also Australian Communications and Media Authority v Mobilegate Ltd a company incorporated in Hong Kong (No 8) [2010] FCA 1197; (2010) 275 ALR 293 at [172] (Logan J). Thus, as I explained in Grouped Property Services, a person who knows that an employee worked on weekends but does not know which weekends or the number of hours worked can be knowingly concerned in the employer's failure to pay weekend penalty rates. 256 In EZY Accounting the Full Court was concerned with the question of the involvement of an accountant (Mr Lau) in contraventions of s 45 of the FW Act by an employer (Blue Impression Pty Ltd, a fast food chain). The contraventions relevantly related to the failure to pay the minimum hourly rates, Saturday and Sunday loadings, as well as public holiday penalty rates; as required by the Fast Food Industry Award 2010. The Full Court concluded at [34] that: It was open to the primary Judge to hold that Mr Lau was "knowingly concerned" in the contravening conduct of Blue Impressions based, as it was, on a system of payment where adult employees were invariably paid a flat hourly rate of pay which was below the Award base rate applicable for ordinary hours of work and insufficient to meet any additional requirement made by the Award for a penalty rate to be paid where applicable. 257 That was because, as the Full Court went on to explain: Mr Lau knew that system of payment; he knew that the Award provided for a base rate; and he knew it contained provisions for the payment of penalty rates whenever applicable. He also knew that the inevitable result of his facilitation of Blue Impression's system would be that employees working ordinary hours would be underpaid the Award base rate of pay and that employees entitled under the Award to any additional penalty payments would not be paid the applicable penalty. That knowledge and involvement was sufficient to implicate Mr Lau in Blue Impression's contraventions of s 45 of Fair Work Act irrespective of the fact that Mr Lau did not know about the particular employment of Mr Zheng, or the particular hours that he worked or the particular provisions in the Award which gave rise to Mr Zheng's entitlement to be paid a particular penalty rate. 258 In Potter v Fair Work Ombudsman [2014] FCA 187 at [80]-[81] Cowdroy J held that to be an accessory to an underpayment contravention, the alleged accessory must have known that the particular award that was contravened applied to the relevant employees. In Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44] Besanko J expressed the (obiter) opinion that there was "a good deal of force" in the alleged accessory's submission that it was necessary for the Ombudsman to establish that it had actual knowledge, amongst other things, that the Cleaning Services Award 2010 applied to the employment of the relevant employees. 259 In Devine Marine at [188], in the absence of full argument (the respondents were unrepresented), White J followed Potter and Al Hilfi "because knowledge that there is an award which is applicable which prescribes minimum rates or entitlements is a factual element necessary for the establishment of the accessory's intention". Later, at [194], he clarified that it was not necessary for the Ombudsman to establish that the alleged accessory knew the name of the particular award that applied; it was sufficient for the Ombudsman to establish that he knew that "an award" was applicable. 260 In Grouped Property Services at [1019], I indicated that I was inclined to agree with the Ombudsman's submission that the test set by Potter was too high. I expressed the opinion, which was obiter in that case, that where the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award, since an accessory does not have to appreciate that the conduct is unlawful. 261 In Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340; at [126]-[128] Flick J referred to these authorities in the context of a case involving contraventions of s 50 of the FW Act, which provides that a person must not contravene a term of an enterprise agreement. His Honour said at [128]: Either approach, with respect, exposes a difficulty. Where the contravention in question is a contravention of s 50, that section does not require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the "elements" of s 50 do not encompass those matters, it is - with respect - difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct. 262 With respect to Flick J, the view I expressed in Grouped Property Services was to the same effect as his. 263 In EZY Accounting the Full Court discussed these authorities at [11]-[15]. Unhelpfully for present purposes, however, it did not decide which approach was correct as it was unnecessary to do so (at [40]). Mr Fredericks of counsel, who appeared for Ms Handoko and Ms Parmenas, argued that the approach taken by White J in Devine Marine should be followed. He submitted that the Ombudsman must establish that the alleged accessories were at least aware that an award applied and that the amounts that were paid to the Employees were less than the rates prescribed by the award. I adhere to the view I expressed in Grouped Property Services. For more abundant caution, however, I will proceed on the basis Mr Fredericks urged. 264 Whatever the extent of the knowledge required, however, mere knowledge is not enough. To be knowingly concerned in, or party to, a contravention, the alleged accessories must also have engaged in conduct that implicates or involves them in the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 59 AILR ¶100-686; 164 IR 299 at [26] (Tamberlin, Gyles and Gilmour JJ); South Jin at [227]. 265 On the other hand, while knowledge of a contravention is a necessary, but not sufficient, basis upon which to find that a person was knowingly concerned in the contravention, it is not necessary that the alleged accessory physically did anything to bring about the contravention. It is sufficient if that person, by what they said and agreed to do, or omitted to say or do, became associated with, and in that way involved in, the conduct constituting the contravention. See Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 144; 154 IR 228 at [29] (Le Miere J); R v Tannous (1987) 10 NSWLR 303 at 308 (Lee J, with whom Street CJ and Finlay J agreed at 304 and 310 respectively); Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 at [116]-[119] (Flick J); Amcor Packaging (Aust) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia [2006] FCA 1265; 157 IR 32 at [15] (Middleton J). 266 Furthermore, to be a knowing participant in the contravention that person need not have participated in all the essential elements of the contravention: Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737; 154 ACSR 472 at [103]-[108] (Stewart J). 267 It is common ground that s 557C has no role to play here. Contrary to the submission advanced on behalf of Ms Handoko and Ms Parmenas, however, it does not follow that in order to prove her case against them the Ombudsman must "positively prove" each element of the relevant contravention and their knowledge of each element without the benefit of the reverse onus. The submission must be rejected. The sole question here is the involvement of Ms Handoko and Ms Parmenas in the Employers' contraventions, not whether the contraventions occurred. That question has already been decided.

[63]

The allegations 268 Tables cross-referencing the contraventions to the Ombudsman's pleading and identifying the involvement of Ms Handoko and Ms Parmenas were annexed to the Ombudsman's concise statement and are reproduced in Annexure A to this judgment. 269 In short, the Ombudsman alleged that Ms Handoko and Ms Parmenas aided, abetted or procured or were knowingly concerned in or party to the contraventions by the Employers of: (1) reg 3.44(1) of the FW Regulations and s 535(4) of the FW Act by knowingly making and keeping false or misleading records; (2) s 536(2) of the FW Act by giving pay slips to the Employees (except for Ms Eliyani) which did not include all the information prescribed by the Regulations; (3) s 536(3) of the FW Act by giving pay slips to the Employees (except for Ms Eliyani and Mr Low) that the Employers knew were false and misleading; (4) s 45 of the FW Act by: (a) failing to pay Mr Liu and the Casual Employees minimum rates of pay contrary to cl 20.1 of the Restaurant Award (b) failing to pay Mr Liu and the Casual Employees casual loadings contrary to cl 13.1 of the Restaurant Award; (c) failing to pay Mr Liu and the Casual Employees Saturday penalty rates contrary to cl 34.1 of the Restaurant Award; (d) failing to pay Mr Liu and the Casual Employees Sunday penalty rates contrary to cl 34.1 of the Restaurant Award; (e) failing to pay Mr Liu and the Casual Employees public holiday penalty rates contrary to cl 34.1 of the Restaurant Award; (f) failing to pay the Employees evening penalty rates contrary to cl 34.2(a)(i) of the Restaurant Award; (g) failing to pay the Employees overtime rates for all work performed outside the spread of hours or rostered hours set out in cl 31 of the Restaurant Award, contrary to cll 33.2(a)- (c) of the Restaurant Award; and (h) failing to pay split shift allowances to the Full-time Employees, contrary to cl 24.2 of the Restaurant Award. 270 In addition, the Ombudsman alleges that Ms Parmenas was involved in the contravention by the Employers of s 535(1) of the FW Act by failing to keep records prescribed by the Regulations in respect of the relevant Employees (see Annexure A) and in the contravention of s 62 of the FW Act and therefore s 44 by requiring Mr Liu, Mr Kenny and Ms Xue to work in excess of 38 hours per week. 271 In Ms Parmenas's case, the allegations are limited to those contraventions committed on and from February 2015 when she first became responsible for the management of the DTF Group's human resources. 272 In substance, the Ombudsman's case is that Ms Parmenas and Ms Handoko were involved in these contraventions because they knew about, and participated in, the practices described by Mr Tandra.

[64]

Consideration 273 The apparent object of the cross-examination of the Ombudsman's witnesses was to emphasise the controlling role played by Mr Harjanto in the running of the business. The same point was made in closing submissions in which Mr Fredericks argued that the evidence did not show that Ms Handoko and Ms Parmenas were involved in "setting up the system or in inputting relevant information on an ongoing basis (for example, wage rates) into the system". At one point in his written submissions he suggested that Ms Parmenas and Ms Handoko were "mere onlookers". He later submitted that "at most, the evidence shows that Ms Parmenas was "a cog in the wheel". 274 The fact that Ms Handoko and Ms Parmenas were answerable to Mr Harjanto and participated in a system he may have established does not mean that they were not involved in the Employers' contraventions. Neither of them was a "mere onlooker" or "a cog in the wheel". To the extent that they were complicit in the continuing operation of the payroll system, they assisted in bringing about the contraventions and/or were knowingly concerned in or party to those contraventions. 275 Mr Fredericks also submitted that there was "little if any direct evidence" implicating them in the contraventions. Even so, their involvement may be established by circumstantial evidence. As Ipp JA observed in Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451 at [811], with whom Spigelman CJ agreed at [539], "nothing in Briginshaw detracts from the proposition that a serious allegation might be proved 'by circumstantial evidentiary facts' and 'inferences and circumstance'", citing Briginshaw at 366. Furthermore, there are "no hard and fast rules" governing the way in which serious allegations might be proved by circumstantial evidence. The question is always whether the allegation has been proved on the balance of probabilities, "taking due account" of what was said in Neat Holdings at 171. See Palmer v Dolman [2005] NSWCA 361 at [47] (Ipp JA Tobias and Basten JJA agreeing at [125] and [126] respectively). 276 In resolving the issues and making the necessary findings, I have borne these principles firmly in mind.

[66]

The contraventions of reg 3.44(1) and s 535(4) (knowingly making and keeping false or misleading records) 278 The essential element of the contraventions of s 535(4) and reg 3.44(1) of which she had to be aware is that, from about February 2015 when she became HR Coordinator or Manager for the DTF Group, the pay slips and the ADP and MYOB records were false or misleading. 279 Ms Parmenas started working as the HR Coordinator in February 2015. She told FWI Hunter that she was the person who created the employee records and she processed the wages for the employees when Mr Tandra was away. 280 I am satisfied that Ms Parmenas knew from about February 2015 or shortly thereafter that these records were false or misleading and that she was implicated in the contraventions by the two companies. I am also satisfied that she facilitated them. That is the inescapable inference to be drawn from Mr Tandra's evidence and her unexplained failure to give evidence to contradict it. That evidence revealed that she instructed and trained Mr Tandra in the payroll process. When he started work for DTF, Ms Parmenas instructed him on how to operate the payroll system and the process he was to follow in administering the payroll, which included the making of the false or misleading records. For the first month, she asked him to observe the process. From time to time, she helped him with the payroll. Mr Tandra's evidence establishes that Ms Parmenas prepared the payroll herself from time to time during Mr Tandra's employment and that she personally distributed to employees the cash components of their remuneration, which was not recorded in their pay slips or the ADP and MYOB records. 281 The effect of Mr Tandra's evidence is that Ms Parmenas instructed him to enter into the payroll system for the two Employers that, regardless of the facts, all Full-time Employees worked 76 hours a fortnight at a set fortnightly salary, the Casual Employees worked less than the hours they actually worked at the hourly rates set out in the Master Payroll, and that Ms Parmenas instructed him that the pay slips should not include the cash payments. 282 On the occasions that Ms Parmenas prepared the payroll and/or gave instructions to Mr Tandra and, throughout the period when she was supervising Mr Tandra, the only reasonable inference to be drawn from the evidence is that she condoned and participated in the creation of false and misleading records. She would have known that the pay slips did not correspond to the amounts recorded in the SRP forms and that the amounts recorded in the ADP and MYOB records differed from those in the SRP forms. Since she agreed that the SRP forms are accurate, I find that she knew that the pay slips, ADP and MYOB records were false or misleading.

[70]

The contraventions of s 45 of the FW Act (award contraventions) 287 The essential elements of the award contraventions are that during the relevant periods the relevant Employees were not paid: (1) the minimum rates of pay for each ordinary hour of work on weekdays; (2) a casual loading of 25% of their minimum hourly rates; (3) Saturday, Sunday or public holiday penalty rates; (4) evening penalty rates; (5) overtime rates; and/or (6) split shift allowances. 288 The evidence establishes that shortly after Mr Tandra started work for DTF, Ms Parmenas knew the hours worked by all employees because of her receipt each fortnight of Mr Tandra's payroll report which included the SRP forms. It will be recalled that the information in the SRP forms included the total hours the employees worked in the fortnightly pay period. She would have also known that because the evidence indicates that she (together with other leaders and managers, including Ms Handoko) was sent copies of the weekly staff rosters, generally referred to as "schedules". Both Mr Liu and Ms Lin gave direct evidence to this effect. 289 Mr Fredericks submitted that mere receipt of documents did not indicate knowledge of their contents. But it is readily apparent that Ms Parmenas did not simply act as a conduit. 290 The evidence shows that until early April 2018, when there was evidently a change of policy, Ms Parmenas required that the weekly rosters be copied to her. Thereafter leaders and managers were instructed to upload the rosters to a particular HR email address. The evidence also shows that she read the rosters and paid close attention to their contents. An example appears in the exhibit to Ms Lin's affidavit. At p 56 of the exhibit is a WhatsApp exchange with Ms Parmenas on 2 March 2017 (without alteration): [2/3/17 上午11:13:34] Hrd DTF Sinthia: I saw your sechedule for last 3-4 weeks is only 7-8 shifts, it that any problem ? [2/3/17 上午11:17:25] Hrd DTF Sinthia: we hope you can work 10 shifts in a week as a leader [2/3/17 上午11:22:04] LIN: I think that's some mistake in between [2/3/17 上午11:22:25] LIN: I work at least 9 to 10shifts for sure [2/3/17 上午11:22:46] LIN: Just this week I got some personal reasons so I work abit less 291 Ms Parmenas knew the days employees were rostered to work, the shifts they were to work (including whether they were split shifts) and the hours they were scheduled to work. A timesheet prepared by Ms Lin for the front kitchen staff at the Emporium Restaurant, for example, which was included in the exhibit to Ms Lin's affidavit (at p 90), clearly showed the extent of the information which Ms Parmenas received. This is a snapshot of the information it disclosed: 292 Ms Lin's affidavit indicates that this document was prepared in 2017, no later than 10 June. 293 I am also satisfied that Ms Parmenas was aware of the rates paid to the Employees in question. Mr Tandra knew that weekend, evening and public holiday rates were not paid and that none of the Employees were paid higher rates when they worked overtime. On the basis of her direct participation in the payroll processes both before and after Mr Tandra began working for the DTF business and her tuition and supervision of Mr Tandra, she would have known that too. A file note made by FWI Hunter of information obtained from the in-person interview with Ms Parmenas at the DTF Head Office on 12 December 2017 confirms that she supervised the payroll and processed the wages for employees when Mr Tandra was away and that she knew that overtime rates were not paid. The evidence also indicates that Ms Parmenas, in consultation with the managers, including Ms Handoko, was involved in setting pay rates, although Mr Harjanto had the final say. She told FWIs Colalancia and Paul as much. Having regard to the position she held, I infer that this was the case throughout her period of employment. 294 Ms Parmenas informed FWIs Colalancia and Paul that she discussed pay rates with Ms Handoko and Mr Harjanto and provided a report on the salaries each fortnight to the accountant and Mr Harjanto, indicating she knew exactly what employees were being paid. In the absence of evidence to suggest otherwise, I infer that this was the practice throughout her period of employment. 295 In her submissions the Ombudsman highlighted the concordance between the amounts recorded in the pay slips and the ADP payroll journals and the rates under the Hospitality Award from 26 March 2017, a point with which the respondents did not take issue. The Ombudsman prepared a table recording the rates included in the pay slips and ADP payroll journals, noting how they corresponded to rates prescribed by the Hospitality Award and, subsequently, the Restaurant Award (MFI 2). Mr Fredericks did not suggest that the document was an inaccurate record. Having regard to Ms Parmenas's position and the work she performed, including her supervision of Mr Tandra, this evidence indicates that she knew that there was an award that prescribed minimum rates of pay and conditions. Indeed, it is inconceivable that, as HR Manager, she would not have known. 296 There is also direct evidence that Ms Parmenas was at least aware that an award applied from the time of the conversation Mr Tandra had with her and Handoko in the third quarter of 2017 when he raised the increase in the minimum wage with them. While Ms Handoko apparently believed the Employers were covered by the Hospitality Award, she and Ms Parmenas were disabused of that the same day when Mr Tandra pointed out that the Employees were "under the Restaurant Award", although Ms Parmenas told FWI Hunter as late as 12 December 2017 that the Hospitality Award applied. In some of the instances recorded in MFI 2 the rates were the same under both awards. Penalty rates and casual loadings were payable regardless of which award applied. As I observed earlier in these reasons, the amounts recorded in the ADP payroll journals also recorded penalty rates for work performed on weekends and public holidays which match the award rates when no such payments were made. 297 A random comparison of the hourly rates recorded in the pay slips and the ADP and MYOB payroll journals with the SRP forms shows that the amounts actually paid to the relevant Employees, as recorded in their SRP forms, were less than the hourly rates prescribed by the Hospitality Award. That indicates that Ms Parmenas not only knew that there was an award which applied to the Employees but that she also knew that the Employers were paying these Employees at below-award rates. 298 On the whole of the evidence it is inconceivable that Ms Parmenas did not know that minimum rates of pay and penalty rates had to be paid for work on Saturdays, Sundays and public holidays. I infer that she did know and that she knew that the amounts paid to the relevant Employees did not include those penalty rates. 299 I am satisfied from her involvement in the payroll process that Ms Parmenas also knew that casual loadings, evening penalties and overtime were not paid to the relevant Employees and that the Full-time Employees were not paid split shift allowances. In view of the obligations in the Regulations to make and keep a record of such payments, her tuition of Mr Tandra, her participation in and oversight of the payroll process, her review of the hours entered into the ADP and MYOB payroll systems and the payroll summaries they generated, it is reasonable to infer that, if the payments had been made, the records would have disclosed that information. 300 For these reasons I am satisfied that Ms Parmenas was at least knowingly concerned in all the contraventions of s 45 relating to the various breaches of the Restaurant Award.

[71]

The contraventions of s 44 (requiring or requesting certain employees to work in excess of 38 hours per week) 301 Mr Fredericks submitted that, for Ms Parmenas to be an accessory to these contraventions, she must have had actual knowledge not only that the Employees in question worked in excess of 38 hours a week but that it was unreasonable to require them to do so. I reject that submission. Put simply, as I have already observed, the Ombudsman does not bear the burden of proving unreasonableness. Rather, the employer has the burden of proving that the requirement or request was reasonable (see above at [217]). In these circumstances, the unreasonableness of the requirement or request cannot be an essential element of the contravention. Consequently, the essential element of these contraventions, of which Ms Parmenas must have had actual knowledge, is that DTF (WS) required or requested Mr Liu, Mr Kenny and Ms Xue to work more than 38 hours a week. In any event, having regard to the nature of her role and the work she carried out, Ms Parmenas knew that overtime was not paid for work in excess of 38 hours. She admitted as much to FWI Hunter. 302 I was not taken to any direct evidence to indicate that Ms Parmenas required or requested Mr Kenny, Mr Liu or Ms Xue to work additional hours. But I have no doubt that Ms Parmenas was aware that these employees worked hours well in excess of 38 a week. 303 First, the rosters Ms Parmenas was sent each week revealed the number of hours each staff member was allocated to work and the total working hours recorded in the SRP forms, included in the payroll reports Mr Tandra gave her, disclosed the number of hours actually worked. 304 Second, having regard to the unchallenged evidence given by Mr Liu that he was told by Ms Handoko, among others, that he had to work at least 55 hours a week once he acquired his 457 visa and that a similar direction was given by Mr Doddy to Ms Lin, I infer that that this was a standard instruction given to employees who were 457 visa holders and each of Mr Liu, Mr Kenny and Ms Xue was a 457 visa-holder. In the absence of any evidence that the practice changed after 2015, I infer that it continued (see Cross on Evidence at [1125] and [7255]). It is highly unlikely that, when she took over Mr Doddy's responsibilities, Ms Parmenas would not have been informed, if not by Mr Doddy, by Ms Handoko or Mr Harjanto. 305 Third, as I have already observed, Mr Liu's uncontradicted evidence was that Ms Parmenas told him that if he did not "match" his hours his annual leave would be reduced accordingly. 306 Having regard to her role in the administration and supervision of the payroll, I am also satisfied that Ms Parmenas became associated with, and thereby involved in, these contraventions. 307 For the above reasons I find that Ms Parmenas was at least knowingly concerned in the contraventions of s 44.

[72]

The contraventions of reg 3.44(1) of the FW Regulations and s 535(4) of the FW Act (knowingly making and keeping false or misleading records) 308 The essential element of the contraventions of s 535(4) and reg 3.44(1) of which Ms Handoko had to be aware is that the pay slips, ADP and MYOB records made and kept by the Employers were false or misleading. 309 The unchallenged evidence given by Mr Tandra was that Ms Handoko was the General Manager of the DTF Group. Ms Parmenas told FWI Hunter on 12 December 2017 and FWIs Colalancia and Paul on 10 July 2019 that Ms Handoko was the General Manager. Ms Parmenas estimated that she started in about 2010. Ms Handoko also signed the employment contracts for Mr Liu, Ms Lin and Ms Xue. Documents, such as employment contracts and correspondence with the Department of Immigration and Border Protection, indicate that Ms Handoko was exercising managerial responsibilities from at least March 2014. 310 At all material times Ms Handoko was responsible for, and involved in, the day to day management of each of the Employers' operations, including the restaurants. Evidence given by Mr Liu and Ms Lin and exhibited to their affidavits indicates that Ms Handoko visited the various restaurants (or "stores", as they referred to them) and was closely involved in a wide range of staffing issues. She was second in charge to Mr Harjanto and Ms Parmenas's direct supervisor. As the Ombudsman put it, she was the "link in the chain" between Ms Parmenas and Mr Harjanto. 311 Ms Handoko was also personally involved in the payroll process. The payroll instructions produced to the Ombudsman and exhibited to Mr Thomas's first affidavit record her involvement at three key points: Gather all TWH [Total Worked Hours] of each store and send it to Vera and each stores managers. …" … 7. Upload raw summaries to Gmail for Vera to check … 19. Gather each stores payroll amounts and give it to Accounts for the cash portion once Vera approves and calculates the penalties amount of each stores. 312 The Ombudsman submitted that: It seems inconceivable that the general manager sitting between [Mr Harjanto and Ms Parmenas] undertaking the work that she did, the role that she did, being copied into the emails that she was sent, did not know of these matters. 313 I agree. Either Ms Parmenas was on a frolic of her own (with Mr Tandra) or she was acting in accordance with the directions of her supervisor, Ms Handoko. The former is unlikely. It was not suggested to Mr Tandra in cross-examination that he devised the system. Ms Parmenas reported directly to Ms Handoko and Ms Handoko directed her day to day activities and duties. Those activities included the supervision and operation of the payroll and record keeping system. In the absence of evidence to the contrary, I infer that this included the creation or at least maintenance of the system of false or misleading record keeping. In the circumstances, it is more likely than not that Ms Handoko knew that the pay slips and the ADP and MYOB records were false or misleading. In the absence of any evidence to contradict the more likely inference, I am satisfied that she had actual knowledge of the essential elements of the reg 3.44(1) and s 535(4) contraventions.

[75]

The contraventions of s 45 of the FW Act (award contraventions) 317 The essential elements of the award contraventions are set out above at [287]. 318 I am satisfied that Ms Handoko knew the Employees' actual rates of pay and the applicable award rates such that she had actual knowledge of the essential elements of the award contraventions relating to the breaches of the following clauses in the Restaurant Award: cl 20.1 (minimum rates); cl 13.1 (casual loadings); cl 33.2 (overtime rates); cl 34.1 (Saturday, Sunday and public holiday penalty rates); cl 34.2(a)(i) (evening penalty rates); and 24.2 (split shift allowances). 319 Mr Tandra spoke to Ms Handoko (and Ms Parmenas) sometime after 1 July 2017 about the relevant award (see summary at [230] and [295]). His evidence, as I have said before, was unchallenged and uncontradicted. Relevantly, during this conversation Ms Handoko suggested looking at the Hospitality Award "because we are covered under that award". This establishes that Ms Handoko was aware of the need to pay employees in accordance with an award both before and after mid to late 2017 and that at least by the time of the conversation with Mr Tandra she knew that the operative award was the Restaurant Award. 320 Further, as highlighted by the Ombudsman in MFI 2 (see [294] above), the false rates included in the pay slips and ADP payroll journals corresponded with the rates prescribed by the Hospitality Award and, after 31 December 2017, the Restaurant Award. Having regard to Ms Handoko's position and the work she performed, including her supervision of Ms Parmenas, this evidence indicates that Ms Handoko, more likely than not, knew that an award applied at all relevant times. 321 In relation to the hours worked by the Employees, the evidence establishes that Mr Liu routinely sent the weekly rosters to Ms Handoko (as well as Ms Parmenas), at least up until the change of policy in early April 2018. So did Ms Lin. I infer that other team leaders did the same. 322 From her receipt of staff rosters, Ms Handoko was aware that the Employees worked on Saturdays, Sundays, public holidays, between 10 pm and midnight, overtime, and split shifts. She also directed Mr Liu that he was required to work 55 hours a week and to work "more hours" when there was insufficient staff or the restaurant was busy. As I mentioned earlier, the requirements to pay higher rates for working on Saturdays, Sundays, public holidays, late nights, and overtime, as well as split shift allowances, were common to the Hospitality and Restaurant Awards. 323 Both Mr Liu and Ms Lin attended meetings weekly or fortnightly, which Ms Handoko also attended, at which staffing issues, including hiring and rostering, were discussed. Mr Liu deposed that Mr Harjanto, Ms Handoko and Ms Li usually attended every meeting. The evidence suggests that, unless she was unable to attend, Ms Handoko led some, if not all, of those meetings (see, for example, Ex QYL-1 p 29 CB 603). Mr Tandra testified that he had seen Ms Handoko on a few occasions at the Chatswood Restaurant when he was handing out cash there. It will be recalled that, when Ms Lin was working at the World Square Restaurant, it was Ms Handoko who gave her the cash part of her salary and the SRP forms to sign. 324 In her interview with FWIs Colalancia and Paul, Ms Parmenas stated that Ms Handoko approved pay rates, although Mr Harjanto had final approval. In the case of the Employees, the rates Ms Handoko approved were below those prescribed by the Restaurant Award. After Mr Tandra provided his payroll reports to Ms Parmenas she would hand them to Ms Handoko to review. The payroll reports included the SRP forms. The SRP forms relevantly recorded the actual total amounts paid to employees in a fortnight and the actual total hours worked by employees each fortnight. 325 Ms Handoko also had access to the Master Payroll. The only other people who had access to it were Ms Parmenas and Mr Tandra and only Ms Parmenas and Ms Handoko had authority to amend it. The Master Payroll recorded actual hourly rates of pay for casual employees and actual fortnightly salaries for full-time employees. It showed that the Employees were paid flat hourly rates or salaries regardless of the days of the week they worked, the hours of the day they worked, their shift arrangements, and regardless of whether they were entitled to casual loading. 326 The actual rates of pay for the Casual Employees were simply too low to establish that they were paid a loading of 25% over and above the minimum hourly rates, that the Full-time Employees who worked split shifts were paid split shift allowances, or that the wages and salaries of any of the Employees met the following award requirements: the minimum rates of pay for each ordinary hour of work on weekdays; Saturday, Sunday or public holiday penalty rates evening penalty rates; and overtime rates. 327 The Master Payroll for the period 25 February to 10 March 2018 (CB1429), for example, recorded that Ms Eliyani was paid $15 per hour. The SRP form for the same period (CB1414) recorded that she worked 69.29 hours and received $1,039.40 plus $10.60 in tips. Leaving aside tips, this confirms that Ms Eliyani was paid the rate recorded in the Master Payroll ($1,039.40 divided by 69.29 hours). Although there is no evidence that Ms Handoko actually accessed or amended the Master Payroll, there is unchallenged evidence that she was given the SRP forms. Ms Eliyani's pay slip (CB1453) and the relevant MYOB e-timesheet (CB1465) records that she worked on (at least one) Saturday and Sunday throughout this period. At this time, the Restaurant Award provided for a minimum hourly rate of $22.86 (including the casual loading) and a Saturday and Sunday rate of $27.44. 328 Another example drawn from a document prepared by the Ombudsman, entitled "Applicant Aid Number 1: Summary of Example Records" marked MFI 1, relates to Ms Xu. While the document did not find its way into evidence, the raw information upon which it drew did, and the respondents did not dispute its accuracy. 329 In the pay period 5 to 18 November 2017 the Master Payroll records that Ms Xu was paid a flat rate of $17.70 per hour. This is supported by the corresponding SRP form that records that she worked 63.88 hours and was paid $1,130.80 plus $9.40 in tips, meaning she was paid $17.70 per hour (excluding tips). Her fingerprint timesheet records that she worked on a Saturdays, Sundays and between 10 pm to midnight during this period. At this time, the Restaurant Award provided for a minimum hourly rate of $19.53 for her classification (B.2.2). When the 25% casual loading is factored in, this becomes a minimum hourly rate of $24.41. Saturday and Sunday hourly rates should have been $29.30 ($19.53 x 150%). Evening penalties at 10% of the standard hourly rate per hour extra should also have been paid on the occasions during that week when she worked past 10 pm. 330 On 1 June 2018 Ms Handoko received a document produced by Trayne Consulting entitled "Restaurant Award Questions", which answered questions she had raised. Trayne Consulting is a firm of consultants ("HR & Recruitment Specialists") apparently engaged by DTF during the Ombudsman's investigation. Most of the questions asked and answered are irrelevant. But the document contained information about minimum rates of pay, Saturday, Sunday and public holiday rates, casual loadings, overtime rates, and split shift allowances. Irrespective of the position before then, from this point on, there can be no doubt that Ms Handoko knew that the Employees were underpaid in these respects. 331 For all these reasons I am satisfied that Ms Handoko was knowingly concerned in all the contraventions of s 45 relating to the various breaches of the Restaurant Award.

[78]

ANNEXURE A DTF (WS) Contraventions FASOC Contravention Ms Handoko involved Ms Parmenas involved paragraph 57 Reg 3.44(1) of the FW Regulations. Yes Yes Knowingly making and keeping false or misleading records in respect of Mr Liu from 6 July 2014 to 4 November 2017. 58 Section 535(4) FW Act. Yes Yes Knowingly making and keeping false and misleading records for Mr Liu and the WS employees from 5 November 2017 to 6 May 2018. 65 Section 535(1) FW Act. No Yes Failing to keep records prescribed by regulations 3.33(1)(a) and 3.33(1)(b) of the Regulations in respect of Mr Liu and the WS Employees. Failing to keep records prescribed by regulation 3.34 of the Regulations in respect of Mr Liu, Ms Eliyani, Mr Ery, Ms Qiu and Ms Wijaya. 71(a) Section 536(2) FW Act. Yes Yes Failing to provide pay slips which contained the required information required by regulations 3.46(1) and 3.46(3) of the Regulations in respect of Mr Liu and the WS Employees (save for Ms Eliyani). 76(a) Section 536(3) FW Act. Yes Yes Knowingly giving pay slips which were false or misleading to Mr Liu and each of the WS Employees, save for Ms Eliyani. 82(a) Section 45 FW Act and clause 20.1 Restaurant Award. Yes Yes Failing to pay Mr Liu and the Casual WS Employees listed in paragraph 80 of the FASOC amounts sufficient to meet their entitlement to the Minimum Rates of Pay. 85(a) Section 45 FW Act and clause 13.1 Restaurant Award. Yes Yes Failing to pay the Casual WS Employees amounts sufficient to meet their entitlement to Casual Loading. 88(a) Section 45 FW Act and clause 34.1 Restaurant Award. Yes Yes Failing to pay Mr Liu and the Casual WS Employees listed in paragraph 87 of the FASOC amounts sufficient to meet their entitlement to Saturday Rates. 91(a) Section 45 FW Act and clause 34.1 Restaurant Award. Yes Yes Failing to pay Mr Liu and the Casual WS Employees listed in paragraph 90 of the FASOC amounts sufficient to meet their entitlement to Sunday Rates. 94(a) Section 45 FW Act and clause 34.1 Restaurant Award. Yes Yes Failing to pay Mr Liu and the Casual WS Employees listed in paragraph 93 of the FASOC amounts sufficient to meet their entitlement to the Public Holiday Rates. 97(a) Section 45 FW Act and clause 34.2(a)(i) Restaurant Award. Yes Yes Failing to pay Mr Liu and the WS Employees listed in paragraph 96 of the FASOC amounts sufficient to meet their entitlement to the Evening Penalty. 101(a) Section 45 FW Act and clause 33.2 Restaurant Award. Yes Yes Failing to pay Mr Liu and the WS Employees in the table at Annexure B of the FASOC amounts sufficient to meet their entitlement to overtime rates. 104 Section 45 FW Act and clause 24.2 Restaurant Award. Yes Yes Failing to pay the Full-time Employees amounts sufficient to meet their entitlement to Split Shift Allowance. 109(b) Section 62 FW Act. No Yes Requesting or requiring Mr Liu, Mr Kenny and Ms Xue to work unreasonable additional hours.

[79]

Selden Contraventions FASOC Contravention Ms Handoko involved Ms Parmenas involved paragraph 59 Section 535(4) FW Act. Yes Yes Knowingly making and keeping false or misleading records for the Selden employees from 5 November 2017 to 25 March 2018. 66 Section 535(1) FW Act. No Yes Failing to keep records prescribed by regulations 3.33(1)(a) and 3.33(1)(b) of the Regulations. Failing to keep records prescribed by regulation 3.34 of the Regulations in respect of Mr Dat Huy. 71(b) Section 536(2) FW Act. Yes Yes Failing to provide pay slips which contained the required information required by regulations 3.46(1) and 3.46(3) of the Regulations in respect of the Selden Employees. 76(b) Section 536(3) FW Act. Yes Yes Knowingly giving pay slips which were false or misleading to each of the Selden Employees, save for Mr Low. 82(b) Section 45 FW Act and clause 20.1 Restaurant Award. Yes Yes Failing to pay the Selden Employees amounts sufficient to meet their entitlement to the Minimum Rates of Pay. 85(b) Section 45 FW Act and clause 13.1 Restaurant Award. Yes Yes Failing to pay the Selden Employees amounts sufficient to meet their entitlement to the Casual Loading. 88(b) Section 45 FW Act and clause 34.1 Restaurant Award. Yes Yes Failing to pay the Employees amounts sufficient to meet their entitlement to Saturday Rates. 91(b) Section 45 FW Act and clause 34.1 Restaurant Award. Sunday Rate. Yes Yes Failing to pay the Selden Employees amounts sufficient to meet their entitlement to Sunday Rates. 94(b) Section 45 FW Act and clause 34.1 Restaurant Award. Public Holiday Rate. Yes Yes Failing to pay the Selden Employees amounts sufficient to meet their entitlement to the Public Holiday Rates. 97(b) Section 45 FW Act and clause 34.2(a)(i) Restaurant Award. Yes Yes Failing to pay the Selden Employees listed in paragraph 96 of the FASOC amounts sufficient to meet their entitlement to the Evening Penalty. 101(b) Section 45 FW Act and clause 33.2 Restaurant Award. Yes Yes Failing to pay the Selden Employees in the table at Annexure B of the FASOC amounts sufficient to meet their entitlement to overtime rates.

[80]

GLOSSARY OF SELECT TERMS Employers DTF (World Square) Pty Ltd (DTF (WS)) Selden Farlane Lachlan Investments Pty Ltd (Selden) Employees Eliyani Eliyani, Ery Ery, Guoyong Liu, Henghui Chen, Kenny Kenny, Meng Joo Low, Nianna Chandra Goi, Qiyin Lin, Renpeng Liang, Rong Xue, Santy Kam, Tingli Qiu, Tu Dat Huy, Wynne Elysia Wijaya, Yinhu Zheng, Yovika Tonang Toe, Zhizi Xu DTF (WS) Employees Eliyani Eliyani, Ery Ery, Guoyong Liu, Kenny Kenny, Qiyin Lin, Renpeng Liang, Rong Xue, Santy Kam, Tingli Qiu, Wynne Elysia Wijaya, Yovika Tonang Toe, Zhizi Xu Selden Employees Henghui Chen, Meng Joo Low, Nianna Chandra Goi, Tu Dat Huy, Yinhu Zheng Full-time Employees Guoyong Liu, Kenny Kenny, Qiyin Lin, Rong Xue Casual Employees Eliyani Eliyani, Ery Ery, Henghui Chen, Meng Joo Low, Nianna Chandra Goi, Renpeng Liang, Santy Kam, Tingli Qiu, Tu Dat Huy, Wynne Elysia Wijaya, Yinhu Zheng, Yovika Tonang Toe, Zhizi Xu Casual DTF (WS) Employees Eliyani Eliyani, Ery Ery, Renpeng Liang, Santy Kam, Tingli Qiu, Wynne Elysia Wijaya, Yovika Tonang Toe, Zhizi Xu assessed period 5 November 2017 to 30 June 2018 contravention period 6 July 2014 to 30 June 2018 Liu period 6 July 2014 to 5 May 2018 accurate records Fingerprint timesheets Payroll tables Staff Received Payment forms Westpac EFT receipts inaccurate/false and misleading records Pay slips ADP e-timesheets ADP payroll journals MYOB e-Timesheets MYOB pay run summaries SRP forms Staff Received Payment forms ADP records ADP e-timesheets ADP payroll journals MYOB records MYOB e-timesheets MYOB pay run summaries EFT Electronic funds transfer PAYG Pay as you go

Parties

Applicant/Plaintiff:

Fair Work Ombudsman

Respondent/Defendant:

DTF World Square Pty Ltd

Legislation Cited (7)

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017(Cth)

(FW Act) and Fair Work Regulations 2009(Cth)

Trade Practices Act 1974(Cth)

Fair Work Act 2009(Cth)ss 12, 13, 14, 45, 62, 535, 536, 549, 550, 551, 557A, 557C, 712, 793

Fair Work Regulations 2009(Cth)

Evidence Act 1995(Cth)s 140

Corporations Act 2001(Cth)

Cases Cited (39)

No 3) [2021] FCA 737; 154 ACSR 472 Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) (2005) 53 ACSR 305; NSWSC 267 Australian Securities and Investments Commission v Somerville (2009) 77 NSWLR 110 Briginshaw v Briginshaw (1938) 60 CLR 336 Chong v CC Containers Pty Ltd (2015) 49 VR 402 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 59 AILR ¶100-686; 164 IR 299 Currie v Dempsey (1967) 69 SR (NSW) 116 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261; 282 IR 86 Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; 152 ALD 209 Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Gallagher v AAG Labour Services Pty Ltd [2020] FCA 1753 Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; 290 IR 331 Giorgianni v The Queen (1985) 156 CLR 473 Gore v Australian Securities and Investments Commission (2017) 249 FCR 167 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jones v Dunkel (1959) 101 CLR 298 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 144; 154 IR 228 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 Potter v Fair Work Ombudsman [2014] FCA 187 R v Tannous (1987) 10 NSWLR 303 RPS v The Queen (2000) 199 CLR 620 Truong v R (2004) 223 CLR 122 Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451 Western Australia v Burke (No 3) [2010] WASC 110 Yorke v Lucas (1985) 158 CLR 661

[2006] WASC 144

[2010] WASC 110

(2010) 275 ALR 293

(2009) 77 NSWLR 110

(1938) 60 CLR 336

(2015) 49 VR 402

(2020) 281 FCR 365

(2015) 230 FCR 298

(1985) 156 CLR 473

(2017) 249 FCR 167

(1948) 77 CLR 39

(1959) 101 CLR 298